DOJ Blackwater Brief

Case: 10-3006 Document: 1250238 Filed: 06/16/2010 Page: 1
Public Copy (revised per 6/15/10 unsealing order) Sealed Material Deleted
No. 10-3006
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v.
PAUL ALVIN SLOUGH,
NICHOLAS ABRAM SLATTEN,
EVAN SHAWN LIBERTY,
DUSTIN LAURENT HEARD,
DONALD WAYNE BALL,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
(The Hon. Ricardo M. Urbina)
PRELIMINARY BRIEF FOR THE UNITED STATES
LANNY A. BREUER
Assistant Attorney General
GREG D. ANDRES
Acting Deputy Assistant Attorney General
JOSEPH N. KASTER DEMETRA LAMBROS

MICHAEL DITTOE Criminal Division, Appellate Section
Trial Attorneys U.S. Department of Justice
National Security Division Washington, D.C. 20530
(202) 307-5964
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. PARTIES AND AMICI
The parties appearing in the district court were the United States of America
as plaintiff and defendants Paul Alvin Slough, Nicholas Abram Slatten, Evan
Shawn Liberty, Dustin Laurent Heard, and Donald Wayne Ball. These same
parties are before this Court. There are no intervenors or amici.
B. RULINGS UNDER REVIEW
The United States appeals the district courts (Hon. Ricardo M. Urbina)
dismissal of the indictment in a criminal case, D.C. No. 08-0360. The courts
opinion was entered on December 31, 2009, and is reported at 677 F.Supp.2d 112
(D.D.C. 2009). The memorandum opinion (Mem.Op.) appears at JA__.
The following rulings are under review:
1. The district courts findings that the government made evidentiary
use of the defendants immunized statements in securing the indictment, in
violation of Kastigar v. United States, 406 U.S. 441 (1972). Mem.Op. 51-75
(JA__).
2. The district courts ruling that a prosecutors consideration of a
defendants immunized statement in deciding whether to recommend charges
constitutes an impermissible non-evidentiary use of the statement under Kastigar,
and the courts findings that the government made significant non-evidentiary use
of the defendants immunized statements in securing the indictment. Mem.Op. 75-
85 (JA__).
3. The district courts finding that any Kastigar errors were not harmless
beyond a reasonable doubt. Mem.Op. 88-89 (JA__).
C. RELATED CASES
After the district court dismissed the indictment without prejudice, it denied
Slattens and Balls motions to dismiss with prejudice based on prosecutorial
misconduct. That opinion was entered on January 19, 2010 (JA__), and is
reported at 679 F.Supp.2d 55 (D.D.C. 2010).
The Kastigar hearing was closed to the public and the press. At the
conclusion of the hearing, the district court ordered that the Kastigar materials
remain under seal pending the governments decision to seek appeal, but also
ordered that the materials be unsealed on February 2, 2010, the day after the
governments deadline for noticing an appeal. That opinion (JA__) in D.C. No.
1:10-mc-00005, is reported at 677 F.Supp.2d 296 (D.D.C. 2010); id. (also ordering
release of redacted pre- and post-hearing memoranda). On January 29, 2010, the
court denied the joint motion by the government and defendants to maintain the
Kastigar materials under seal (JA__). The governments appeal of that ruling in
Washington Post, et al., v. United States, et al., is this Courts Case No. 10-3007.
Counsel is aware of no other related cases.

Material Under Seal Deleted
TABLE OF CONTENTS
JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATUTES AND REGULATIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Introduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Blackwater, The Raven 23 Convoy, Its Rules Of Engagement,

And The Shooting At Nisur Square. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
C. U.S. Colonels Boslego And Tarsa Go To The Scene, And

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
D. Back At Blackwater Headquarters, Several Raven 23 Guards Are

Angry And Upset,
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
E. The Raven 23 Team Orally Reports To The State Department On

The Day Of The Shooting, And Submits Written, Sworn
Statements Two Days Later. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
F. The FBI Goes To Baghdad Under Instructions To Investigate

From Scratch, And Murphy, Mealy And Frost Tell Their
Stories To The Grand Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
G. A Reasonable Difference Of Opinion And A Breakdown Of The

Governments Taint Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
H. The Prosecutors Travel To Baghdad, Decide To Charge A Mass

Liability Theory, And Look Into (But Abandon) Obstruction
And False Statement Charges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Material Under Seal Deleted
I. Realizing The Testimony Of Some Grand Jury Witnesses May

Have Been Affected By Exposure To The Defendants Statements,
The Government Presents A Scaled-Down Case To A Second
Grand Jury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
J. The District Courts Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
THE INDICTMENT SHOULD BE REINSTATED
I. THE DISTRICT COURT CLEARLY ERRED IN FINDING

PERVASIVE EVIDENTIARY TAINT IN THE GRAND JURY.
IN LIGHT OF THE OVERWHELMING UNTAINTED
EVIDENCE SUPPORTING PROBABLE CAUSE TO INDICT,
THE PRESENTATION OF SOME TAINTED EVIDENCE WAS
HARMLESS BEYOND A REASONABLE DOUBT. . . . . . . . . . . . 56
A. Standards of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
B. Kastigar and North: The Applicable Legal Principles. . . . . . 58
C. The District Court Clearly Erred In Finding That Murphy

And Frost Could Not Distinguish What They Saw In The
Square From What They Read In The Press And It Failed,
As Required By North, To Separate The Wheat Of Their
Unspoiled Memories From The Chaff Of The Immunized
Statements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
1. Background: The Tainted Testimony. . . . . . . . . . . . . . 61
2. Frosts And Murphys Isolated And Admittedly

Speculative Testimony About
First Shots Does Not Cast Doubt On
The Independence Of All Their First-Hand
Observations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ii
D. The District Court Clearly Erred In Finding That The

Iraqi Eyewitnesses Grand Jury Testimony Was Tainted. . . . 67
1. Background: A Sense Of The Publicity.. . . . . . . . . . . . 69
2. The District Court Failed, As North Requires, To

Examine The Content Of The Iraqi Eyewitnesses
Grand Jury Testimony And To Determine
Whether Their Identification Of The Shooters
Was Affected By Any Exposure They May Have
Had To The Press. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
E. The District Court Clearly Erred In Finding That Frosts

Journal Was Tainted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
1. Background: The Frost Journal. . . . . . . . . . . . . . . . . . . 81
2. Frost Was Motivated To Preserve His Memory

About A Momentous And Tragic Event, And
Would Have Written His Journal Regardless Of
Any Exposure To The Defendants Statements.. . . . . . 82
3. The Journal Is Not Otherwise Tainted.. . . . . . . . . . . . . 86
F. The District Court Clearly Erred In Finding That All Of

Ridgeways Grand Jury Evidence Was Tainted.. . . . . . . . . . . 88
1. Background: Ridgeways Debriefing And Grand Jury

Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
2. All Of Ridgeways Information Was Not Tainted.. . . . 92
G. The Tainted Testimony Presented To The Grand Jury Was

Harmless Beyond A Reasonable Doubt. . . . . . . . . . . . . . . . . . 94
iii
II. THE DISTRICT COURT ERRED IN FINDING THE

GOVERNMENT MADE IMPERMISSIBLE AND SIGNIFICANT
NON-EVIDENTIARY USE OF THE DEFENDANTS
COMPELLED STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
A. Standards of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
B. Where The Government Has Sufficient, Independent

Evidence To Indict, The Fifth Amendment Does Not
Require It To Prove That A Prosecutors Charging
Recommendation Was Unaffected By His Exposure
To Immunized Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . 102
C. The District Court Clearly Erred In Finding The

Governments Exposure To Heards And Balls
Compelled Statements Played A Central Role
In The Decision To Charge Them. . . . . . . . . . . . . . . . . . . . . 107
1. The Decision To Recommend Charges Against

Heard Was Based On The Independent Evidence
Against Him, Not His September 16 Statement
And The Reference To Heards Statement In The
Prosecution Memo, Later Redacted, Was Harmless
Beyond A Reasonable Doubt.. . . . . . . . . . . . . . . . . . . 107
2. The Decision To Recommend Charges Against Ball

Was Based On The Independent Evidence Against
Him, Not His Garrity Statements. . . . . . . . . . . . . . . . 111
D. The District Court Clearly Erred In Finding The Government

Otherwise Made Non-Evidentiary Use Of The Defendants
Statements In Securing The Indictment. . . . . . . . . . . . . . . . . 113
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
iv
TABLE OF AUTHORITIES
CASES
Arizona v. Fulminante, 499 U.S. 279 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . 58, 95
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988).. . . . . . . . . . . . . . . . 111
Chapman v. California, 386 U.S. 18 (1967).. . . . . . . . . . . . . . . . . . . . . . . . . . 60, 95
Chavez v. Martinez, 538 U.S. 760 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Costello v. United States, 350 U.S. 359 (1956). . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Garrity v. New Jersey, 385 U.S. 493 (1967).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Harrington v. California, 395 U.S. 250 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973). . . . . . . . . . . . . . . . . . . . . 2
* Kastigar v. United States, 406 U.S. 441 (1972).. . . . . . . . . . 2, 4, 5, 52, 57, 58, 59,
68, 71, 85, 96, 101, 103
106, 112, 113, 116
Neder v. United States, 527 U.S. 1 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
In re Stover, 40 F.3d 1096 (10th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
United States v. Alexander, 471 F.2d 923 (D.C. Cir. 1973). . . . . . . . . . . . . . . . . 96
United States v. Anderson, 450 A.2d 446 (D.C. 1982).. . . . . . . . . . . . . . . . . . . . 123
* United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990). . . . . . . . . . . . . . . . . . . . . . 84
United States v. Branch, 91 F.3d 699 (5th Cir. 1996). . . . . . . . . . . . . . . . . . . . . 122
* Authorities upon which we chiefly rely are marked with asterisks.
v
* United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985). . . . . . . . . . . . . . . . 104, 116
United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986).. . . . . . . . . . . . 116, 123
United States v. Crowson, 828 F.2d 1427

(9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 121
* United States v. Daniels, 281 F.3d 168

(5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 99, 119, 122
United States v. DeDiego, 511 F.2d 818 (D.C. Cir. 1975). . . . . . . . . . . . . . . . . . . 59
United States v. Gallo, 859 F.2d 1078 (2d Cir. 1988). . . . . . . . . . . . . . . . . . . . . . 96
United States v. Harris, 420 F.3d 467 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . 97
United States v. Harris, 973 F.2d 333 (4th Cir. 1992). . . . . . . . . . . . . . . . . . . . . 116
United States v. Hasting, 461 U.S. 499 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
United States v. Helmsley, 941 F.2d 71 (2d Cir. 1991). . . . . . . . . . . . . . . . . . 57, 84
United States v. Hsia, 131 F. Supp. 2d 195 (D.D.C. 2001). . . . . . . . . . . . . . . . . 116
* United States v. Hylton, 294 F.3d 130 (D.C. Cir. 2002). . . . . . . . . . . . . . 59, 83, 84
* United States v. Kilroy, 27 F.3d 679

(D.C. Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 73, 101, 117
United States v. Koon, 34 F.3d 1416 (9th Cir. 1994),

rev'd in part on othergrounds, 518 U.S. 81 (1996). . . . . . . . . . . . . . . . . . . . . . . 3
United States v. Lipkis, 770 F.2d 1447 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . 64
* United States v. Mariani, 851 F.2d 595 (2d Cir. 1988). . . . . . . . 105, 116, 121, 123
United States v. McDaniel, 482 F.2d 305 (8th Cir. 1973). . . . . . . . . . . . . . . . . . 106
vi
United States v. McGuire, 45 F.3d 1177 (8th Cir. 1995). . . . . . . . . . . . . . . 116, 121
* United States v. Montoya, 45 F.3d 1286

(9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 79, 93, 100, 105, 116
* United States v. Nanni, 59 F.3d 1425 (2d Cir. 1995). . . . . . . . . . . . . . . . 58, 84, 85
* United States v. North, 910 F.2d 843 (D.C. Cir.),

modified, 920 F.2d 940 (D.C. Cir. 1990) . . . . . . . . . . . . . 5, 57, 58, 59, 60, 67, 71
80, 81, 83, 94, 101, 102,
106, 116, 118
* United States v. North, 920 F.2d 940 (D.C. Cir. 1990). . . . . . . . . . . . . . . . . . 68, 71
United States v. Oruche, 484 F.3d 590 (D.C. Cir. 2007). . . . . . . . . . . . . . . . . . . 102
United States v. Pelletier, 898 F.2d 297 (2d Cir. 1990). . . . . . . . . . . . . . . . . . . . . 96
United States v. Peterson, 483 F.2d 1222 (D.C. Cir. 1973). . . . . . . . . . . . . . . . . . 97
United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991). . . . . . . . . . . 59, 65, 66
* United States v. Ponds, 454 F.3d 313

(D.C. Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 60, 79, 85, 96, 110, 112
United States v. Rivieccio, 919 F.2d 812 (2d Cir. 1990). . . . . . . . . . . . . . . . . . . 105
United States v. Rogers, 722 F.2d 557 (9th Cir. 1983).. . . . . . . . . . . . . . . . . . 68, 96
United States v. Romano, 583 F.2d 1 (1st. Cir. 1978). . . . . . . . . . . . . . . . . . . . . 123
United States v. Schmidgall, 25 F.3d 1523 (11th Cir. 1994). . . . . . . . . . . . . . . . . 73
United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983). . . . . . . . . . . . . . . . . . . . . 106
United States v. Serrano, 870 F.2d 1 (1st Cir. 1989). . . . . . . . . . . . . . . 96, 105, 116
United States v. Stock, 948 F.2d 1299 (D.C. Cir. 1991). . . . . . . . . . . . . . . . . . . . . 96
vii
United States v. Velasco, 953 F.2d 1467 (7th Cir. 1992). . . . . . . . . . . . . . . 106, 116
United States v. Wallace, 964 F.2d 1214 (D.C. Cir. 1992).. . . . . . . . . . . . . . . . . . 58
* United States v. Williams, 504 U.S. 36 (1992). . . . . . . . . . . . . . . . . . . . . . . 99, 100
STATUTES, RULES AND MISCELLANEOUS
18 U.S.C. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 96
18 U.S.C. 924(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2
18 U.S.C. 1112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 96
18 U.S.C. 1113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 96
18 U.S.C. 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
18 U.S.C. 3731. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Fed. R. Crim. P. 6(a), (f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Fed. R. Evid. 1101(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
U.S. Attorneys Manual 9-11.233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
viii
GLOSSARY
Dkt. District Court Docket
DSS U.S. State Departments Diplomatic Security Service
Embassy United States Embassy in Baghdad, Iraq
Ex. Kastigar Hearing Exhibit
INP Iraqi National Police
JA Joint Appendix
Mem. Op. District Courts 12/31/09 Memorandum Opinion
RSO State Departments Regional Security Office
Square Nisur Square in Baghdad, Iraq
State State Department
Tr. Transcript
VBIED Vehicle-borne improvised explosive device

JURISDICTION
This is an appeal from the dismissal of an indictment in a criminal case.
The district court (Hon. Ricardo M. Urbina) had jurisdiction under 18 U.S.C.
3231, and dismissed the indictment on December 31, 2009. The government
timely noticed an appeal on January 29, 2010. D.C. No.08-360 (Dkt.235). This
Court has jurisdiction under 18 U.S.C. 3731.
ISSUES PRESENTED
1. Whether the grand jury testimony of key eyewitnesses to a deadly
shooting was wholly tainted by reports of the defendants immunized statements
about the incident in the press and whether, in light of the overwhelming
untainted evidence presented to the grand jury, any Kastigar error was harmless
beyond a reasonable doubt.
2. Whether, in securing the indictment, the government made
impermissible non-evidentiary use of the defendants post-shooting statements,
where the indictment was supported by more than sufficient independent evidence,
and where the defendants statements did not provide the government with
information it did not already have or need to make its case.
STATUTES AND REGULATIONS
The charging statutes, 18 U.S.C. 1112, 1113, 924(c), 2, and 3261(a)(1),
are reproduced in an addendum to this brief.

STATEMENT OF THE CASE
In December 2008, a federal grand jury in the District of Columbia charged
Paul Slough, Nicholas Slatten, Evan Liberty, Dustin Heard, and Donald Ball with
14 counts of voluntary manslaughter, in violation of 18 U.S.C. 1112, 2, and
3261(a)(1) (the Military Extraterritorial Jurisdiction Act); 20 counts of attempted
manslaughter, in violation of 18 U.S.C. 1113, 2, and 3261(a)(1); and one count
of using and discharging a firearm in relation to a crime of violence, in violation
of 18 U.S.C. 924(c), 2, and 3261(a)(1). The indictment alleged that the
defendants, private security guards under contract with the U.S. State Department
in Iraq, killed or wounded 34 Iraqi civilians in Baghdads Nisur Square on
September 16, 2007. See Indictment.
After a hearing under Kastigar v. United States, 406 U.S. 441 (1972), the
district court dismissed the indictment. 12/31/09 Mem.Op. (Mem.Op.). It found
that oral statements the defendants made to the State Department on the day of the
shooting were compelled under a threat of job loss under Garrity v. New Jersey,
385 U.S. 493, 500 (1967), and Kalkines v. United States, 473 F.2d 1391, 1393 (Ct.
Cl. 1973) (such statements may not later be used against a public employee in a
criminal proceeding), and that those and subsequent sworn statements to State
were used to secure the indictment, in violation of Kastigar. This appeal followed.
2
STATEMENT OF FACTS
A. Introduction
This, in the governments view, is a case about a group of private security
guards who recklessly and unjustifiably opened fire in a crowded Baghdad square,
leaving 14 innocent Iraqi civilians dead and another 20 wounded.
It is also a case about the difficulty of bringing them to justice.
Hours after the shooting, well before the FBI was on the scene or the Justice
Department could make a considered decision about any grant of immunity, the
State Department questioned the guards about what had happened, and then
extended formal Garrity immunity for their sworn statements two days later. In
the days and weeks that followed, versions of the guards accounts were reported
in the press, raising the possibility that anyone who read the stories might thereby
be tainted.1
1
The Ninth Circuit has well described the problem this sort of situation
creates. In Garrity cases (as when a police officer is involved in a controversial
use of force), the goal of an employers questions is generally to learn the facts of
a situation as quickly as possible. United States v. Koon, 34 F.3d 1416, 1433
n.13 (9th Cir. 1994), revd in part on other grounds, 518 U.S. 81 (1996). The
questioners do not necessarily act with the care and precision of a prosecutor
weighing the benefits of compelling testimony against the risks to future
prosecutions; indeed, they may not even have the prospect of prosecution and the
requirements of the Fifth Amendment in mind. In addition, because statements
may be compelled soon after the event in question, it is far more likely that these
statements will be circulated before there is an opportunity to can testimony. Id.
3
In navigating these waters in its effort to prosecute the Nisur Square
shooters, the government made mistakes. Its taint procedures did not work as
intended: the prosecutors, believing they were entitled to know what the guards
had said before they gave their sworn Garrity statements, sought out that
information unaware that the taint attorney had recommended a different course.
And although the government endeavored to present an entirely clean case to the
grand jury, some (in our view, very isolated) tainted testimony came in.
The district court did not see it that way. In dismissing the indictment, it
questioned the governments good faith at every turn: it found that prosecutors
knowingly and deliberately ignored the advice of the taint attorneys; presented
pervasively tainted evidence to the grand jury; and made significant non-
evidentiary use of the defendants Garrity statements. Mem.Op. 2-3, 51-88. It
found, in the end, that myriad Kastigar violations rendered the indictment
fatally defective. Mem.Op. 88-89.
The record, we respectfully submit, tells a very different story.
4
. Material Under Seal Deleted

B. Blackwater, The Raven 23 Convoy, Its Rules Of Engagement,
And The Shooting At Nisur Square2
In 2007, Blackwater Worldwide (Blackwater) was a private company that
contracted with the State Department to provide security for U.S. personnel in
Iraq.
GJ.Tr.11/20/08/am/17-18, 61; GJ.Ex.94/10-13.
GJ.Tr.11/20/08/am/32; GJ.Exs.5, 6, GJ.Ex.106/43; GJ.Ex.90/73-74.
2
Because the Kastigar inquiry necessarily focuses on the testimony
presented to the grand jury whether any of it was tainted and, if so, whether the
taint was harmless beyond a reasonable doubt, United States v. North, 910 F.2d
843, 872-73 (D.C. Cir.) (North I), modified, 920 F.2d 940 (D.C. Cir. 1990) we
present the facts about the Nisur Square shooting through the record of the
indicting grand jury (Exhibit 1 at the Kastigar hearing). The grand jury testimony
of three of the defendants fellow guards, memorialized in 2007, is also relevant to
show what the prosecutors knew about the shooting and when they knew it,
another central question in this case. We have bound the grand jury transcripts
(GJ.Tr.) and exhibits (GJ.Ex) separately. In our final brief, we cite to the Joint
Appendix (JA) for the Kastigar transcripts and exhibits; in the preliminary brief,
we cite the Kastigar transcripts by date. E.g., 10/14/am/pg#.
5
GJ.Tr.11/20/08/am/12-14.
GJ.Ex.2.
GJ.Ex.2/3, 13 (emphasis in original).
GJ.Ex.3 (capitalization in original).
GJ.Tr.11/20/08/am/60-61.
GJ.Ex.90/72-73. Id.
6
GJ.Ex.1/14-17.
G.J.Ex.90/16
GJ.Ex.89/37
GJ.Ex.89/47-53.
GJ.Ex.92/30-33.
GJ.Ex.92/34; GJ.Ex.90/18-19. Then, as the
district court put it, a shooting incident erupted. Mem.Op. 4.
7

C. U.S. Colonels Boslego And Tarsa Go To The Scene, And
GJ.Ex.106/3-6.
Id. at 22-24.
Id. at 24-26, 35.
Id. at 32.
Id. at 24-26,
32-33.
GJ.Ex.106/38,
51, 54, 68.
8

Id. at 32, 36-62.
Id. at 36.
Id. at 33, 36-37.
GJ.Ex.106/49-50, 69.
Id. at 50
Id. at 37-38, 41-62.3
Id. at 41-42.
3
E.g., GJ.Ex.106/70
id. at 49
id. at 48
9

10/23/pm/29
GJ.Ex.106/41.
GJ.Ex.106/49; id.
at 43
id. at 45
Id. at 62-67.
id. at 43, 51
Id. at 67-68.
10
10/21/am/5-6
GJ.Ex.108/21-22.
id. at 24
Id. at
23-24, 45.
id. at 23, 26, 29
Id. at 30 , 24-30, 45, 49.
Id. at 31-36, 42, 45-46.
GJ.Tr.11/20/08/pm/6; GJ.Ex.7.
D. Back At Blackwater Headquarters, Several Raven 23 Guards Are

Angry And Upset,
11
GJ.Ex.94/43-44.
Id. at 44,
46.
GJ.Ex.92/86-90.
GJ.Ex.90/57
GJ.Ex.92/87;
GJ.Ex.93/101-02.
see GJ.Ex.94/58-59
Id. GJ.Ex.92/91,
GJ.Ex.94/46-47, 54-55
see id. at 48
12

GJ.Ex.91/51-52
GJ.Ex.92/104; GJ.Ex.93/132-33.
GJ.Ex.90/9-12, 77-81; GJ.Ex.93/23; GJ.Ex.94/61-63;
see GJ.Ex.93/27
GJ.Ex.93/23, 30-32.
GJ.Ex.90/66-68, 79-81.
GJ.Ex.92/82-83.
Id.
GJ.Ex.93/117-20,
GJ.Ex.90/68-69.
13
GJ.Ex.90/50-52, 78; GJ.Ex.93/98-100.
GJ.Ex.90/69-71
Id. at
71-72
GJ.Ex.90/77.
GJ.Ex.91/18,
GJ.Ex.93/32-35.
Id.
GJ.Ex.90/65-66. Id.
14
GJ.Ex.93/37-40.
GJ.Ex.93/30, 40-41; GJ.Ex.91/46-47.
GJ.Ex.90/125; GJ.Ex.93/119-20.
See GJ.Ex.93/105, 109-111
GJ.Ex.93/120-22,
GJ.Ex.94/33-34.
GJ.Ex.90/133.
E. The Raven 23 Team Orally Reports To The State Department On

The Day Of The Shooting, And Submits Written, Sworn
Statements Two Days Later.
In September 2007, State Department policy set forth reporting
requirements for employees, including private contractors, who discharged their
15

weapons in Baghdad. The Hunter Memorandum contemplated a two-step
process. First, various key players (including the employee who fired and
everyone in his vehicle) were to report immediately to the Regional Security
Office (RSO) at the Embassy for a debriefing. Ex.32/1. After that, the
employee who discharged his weapon was to submit a formal, sworn written
statement on a form carrying a Garrity warning. Id.4
10/16/pm/103, 115-18.
See
Lopez.Exs.2, 3; Reta.Ex.3; see also 10/15/am/7-8, 22; 10/15/pm/25-29;
4
The form, Ex.32/3, provided:
I understand that this statement is made in furtherance of an official

administrative inquiry regarding potential misconduct or improper
performance of official duties and that disciplinary action, including
dismissal from the Departments Worldwide Personnel Protective Services
contract, may be undertaken if I refuse to provide this statement or fail to do
so fully and truthfully. I further understand that neither my statements nor
any information or evidence gained by reason of my statements can be used
against me in a criminal proceeding * * *.
16

10/16/am/37-39
10/16/pm/111-113; see also 10/14/pm/156-57
Two days later, on September 18, all the Raven 23 guards submitted written,
sworn statements on the Garrity forms to the DSS. Mem.Op. 8; 10/15/pm/91-93.
10/15/am/51-53, 10/16/am/56-57, Motley.Ex.6, Lopez.Ex.5,
Scollan.Ex.4;
10/15/am/28-38, 88-90, 10/15/pm/87-91, 10/16/pm/7, 11-21, Ex.25;
10/15/am/49-51, 94-96, 10/16/pm/119-20, 10/19/am/77-80.
10/15/pm/9-14;
10/16/am/27-28, 84-86; Ex.27; Carpenter.Ex.8.
10/16/pm/27.
17
Id. at 28-29.
F. The FBI Goes To Baghdad Under Instructions To Investigate

From Scratch, And Murphy, Mealy And Frost Tell Their
Stories To The Grand Jury.
On October 4, 2007, a team of FBI agents, led by John Patarini, flew to
Baghdad to investigate the Nisur Square shooting. 10/21/pm/63-65.
see Ex.53, and a protocol
was established to guide the FBIs investigation. The agents (who had not read
any press reports of the event, 10/19/pm/49-51; 10/21/pm/64) were to have no
contact with any tainted State Department personnel (i.e., those who had worked
on or discussed the investigation in any way), and anything the FBI wanted from
State had to first be screened by a taint attorney. 10/19/pm/52-54, 60-61;
10/21/pm/64-66; Ex.28. Patarini understood that he and his team were to have no
knowledge of what the guards had told DSS agents after the shooting, either in the
oral interviews or sworn statements. 10/21/pm/64-65, 95-96, 103; see
10/19/pm/51 (Agent Murphy: we [were] not * * * allowed to read any media,
* * * not allowed to talk to anybody about the statements the guards had made,
and not ask any questions about the statements); 10/20/pm/17-24, 41-42. As
18

Murphy put it, we were going to be conducting the investigation from scratch.
10/19/pm/51.
Although State Department investigators were off limits to the FBI, the
team was permitted to speak with the U.S. military and Iraqi first responders.
10/21/pm/67-68. Patarini soon contacted Colonel Boslego, who, among other
things, provided him with pictures he had taken in the Square after the shooting.
10/21/pm/68-69, 108-110; 10/23/pm/38-47. The FBI also located and
photographed vehicles shot in the Square, and took custody of many of them.
10/21/pm/79-81; Ex.207. The FBI did two thorough grid searches of the scene;
took pictures; collected further physical evidence, including shell casings and
bullets (some from victims bodies); took custody of the Raven 23 teams
weapons; and
10/21/pm/71-86; Exs.200, 207.
Boslego also introduced the FBI to Colonel Faris, the chief of security for
the Iraqi National Police. 10/19/pm/61-64. Right after the shooting, Faris
interviewed a number of eyewitnesses and memorialized their accounts in a report
for the Iraqi Prime Minister. 10/19/pm/64-65; Ex.202.
19

Ex.202. In addition to the report, Faris provided the FBI with a list of those
killed and wounded, and continued to identify witnesses and victims for the agents
to talk to. 10/19/pm/61-67; 10/21/pm/70-71, 84-85, 94-96; Ex.40. During its one-
month stay, the FBI interviewed some 75 Iraqi witnesses and victims, including
Iraqi police and military on the scene that day. 10/19/pm/66-67; Exs.207, 208. By
piecing together the witness accounts and physical evidence, the FBI was able to
map the location of the vehicles and victims struck by Raven 23s fire.
10/22/pm/55-63; 10/19/pm/71; 10/21/pm/98-99. Later, FBI technicians performed
trajectory analyses, 10/22/pm/61-62; 10/21/pm/79-80, and concluded that the
shooting had come from inside the circle outward, not toward the convoy.
10/22/pm/57, 63.
The October interviews of the Iraqi witnesses also gave the FBI a working
understanding of who had fired in the Square. 10/21/pm/116-17. As Patarini
explained, while the witnesses did not know the shooters by name, they were able
to describe a vehicle by its order in the convoy, and identify a shooter by his
position in the vehicle, and sometimes by a physical description. Id. (Iraqi
witnesses tremendously assisted in identifying shooters).
Blackwater, for its part, was much less helpful.
20

GJ.Ex.94/64; Ex.208. Although Frost, Mealy and Murphy did not give statements
to the FBI during that trip, Mealy and Frost signaled that they wanted to talk, and
Murphy, who was in the United States, was also identified as a potential
cooperating witness. 10/19/pm/57-59; 10/21/pm/103-05. These three turret
gunners, in the FBIs mind, plainly had a story to tell. 10/21/pm/103-05.
Mealy, Frost and Murphy appeared in the grand jury in November and
December 2007, and filled in key details of what had happened in Nisur Square.
GJ.Ex.89/58-59; GJ.Ex.94/21-22;
GJ.Ex.92/41-42.
GJ.Ex.92/42-44.
Id.5
GJ.Ex.94/22, 26.
GJ.Ex.92/44-45; GJ.Ex.94/23-24, 46.
5
In the grand jury, Frost and Murphy testified about
but acknowledged at the
Kastigar hearing that this testimony was affected by their exposure to
sworn statements. We discuss this tainted testimony infra, at 60-67.
21
GJ.Ex.92/44, 104; GJ.Ex.93/93-95.
GJ.Ex.90/34-35,
GJ.Ex.94/27-31.
Id. at 29; id. at 27-30, 55-56
GJ.Ex.92/46-49.
GJ.Ex.92/54-55; see GJ.Ex.90/37, 138
GJ.Ex.90/38.
Id. at 39-43.
GJ.Ex.92/56-65.
22

GJ.Ex.92/62-64
id. at 76-78
GJ.Ex.90/44, 47-49
GJ.Ex.94/37-40, 56-57.
Id. at 39-40.
GJ.Ex.90/50-52. Id. at 51-52
see GJ.Ex.92/67
See GJ.Ex.92/50-54
GJ.Ex.93/125 GJ.Ex.89/62-63
E.g., GJ.Ex.90/59-60;
GJ.Ex.94/32-35; GJ.Ex.93/113.
23
Frost.Ex.6/5.6
G. A Reasonable Difference Of Opinion And A Breakdown Of The

Governments Taint Procedures
As noted, the Garrity issue surfaced early in the investigation, and in
October 2007, Ray Hulser, Deputy Chief of DOJs Public Integrity Section, was
assigned to be the taint attorney for the case. 10/22/pm/76-77. It was Hulsers
job to review information that surfaced about the shooting, including in media
accounts and from the State, Defense, and Iraqi investigations, and to screen out
for the clean team of investigators and prosecutors any references to the Raven
23 guards potentially compelled statements. 10/22/pm/80-86, 105-09. In the
early days of his involvement, Hulser learned the guards gave oral statements to
DSS agents on the day of the shooting, and written, sworn statements later.
10/22/pm/79-80. Not knowing the details of how the early interviews were
conducted, Hulser advised that all the guards statements be deemed off limits.
10/22/pm/95-96, 103-105 (It seemed to me that even the earliest statements * * *
might later be deemed by a court to be compelled). As Hulser explained at the
6
The district courts conclusion that Frosts journal was tainted is
discussed infra, at 80-88.
24
Kastigar hearing, the question of whether a statement is compelled under Garrity
is very fact-based, id., and before all the facts were in, he advised caution.
10/22/pm/96 (at this point * * * I was * * * going to be very cautious about what
they would be exposed to); 10/23/am/4-5 (same); see Hulser.Ex.6; Ex.57.##1453,
1658 (I have been taking a conservative approach to pre-sworn statements).
Hulsers view informed the protocol under which the FBI operated in
Baghdad in October, and in accordance with which the Bureau had no contact with
the DSS agents who had worked on the investigation, and avoided media stories
about the incident. 10/22/pm/80-93, 96-99; Hulser.Ex.2. Hulsers views were
communicated to the FBI through Michael Mullaney, chief of the
Counterterrorism Section within DOJs National Security Division, who was
assigned to serve as the liaison between the taint team (Hulser, Jessie Tampio at
State, and a DOJ lawyer in Baghdad) and the investigative and prosecutive team.
10/22/pm/99-101; 10/23/pm/102-114; 10/26/am/23-25.
Meanwhile, AUSA Ken Kohl from the D.C. U.S. Attorneys Office was
assigned as the lead prosecutor in November 2007, to be joined by Stephen
Ponticiello, from DOJs National Security Division. 10/26/pm/60-61;
10/27/pm/104-05. When Kohl received the assignment, he knew Garrity was an
issue, see 10/27/pm/106-08 (knew members of DOJs Criminal Division had been
25
exposed to guards statements, and had decided that non-Division lawyers should
handle the case) and he also knew there was considerable controversy over the
State Departments promises of immunity to the Blackwater guards. 10/28/am/30
(we knew [an official at State] had been fired because the warnings had not been
properly authorized); see Def.Ex.29. Kohl also knew that taint attorney Hulser
(whom Kohl had never met) would be screening materials the prosecutors needed,
10/27/pm/110-11; 10/28/am/59-62, and that Mullaney would operate as the
middleman between Hulser and the trial team. 10/26/am/23-25; 10/26/pm/65, 78;
10/28/pm/94-95; 10/23/am/4-6.
Upon receiving the case, Kohl researched Garrity, and also contacted
experts on immunity issues he knew in Main Justice. 10/27/pm/111-21. These
conversations raised even more questions in Kohls mind about the circumstances
of the guards statements to State, and whether the guards could reasonably
believe they had been granted immunity in giving them. 10/27/pm/112-16. One
lawyer from DOJs Office of Enforcement Operations (which authorizes statutory
grants of immunity) advised Kohl that, in his view, States unauthorized promises
of immunity would not bind prosecutors. Id.; Ex.64.#4321-23. Another National
Security Division lawyer, who had dealt with difficult Garrity issues, had a similar
view and also believed there is a strong argument that Garrity immunity
26

should not be protected to the same degree as immunity granted by law
enforcement officials. 10/27/pm/117-21; Ex.64.#4347-49 (danger that
organization can compel[] statements to shield its employees from prosecution).
Based on his preliminary research, Kohl resolved to learn more about the
circumstances surrounding the guards statements to the DSS. 10/27/pm/116-17,
121-22.
He soon learned more and then some when Frost, Mealy and Murphy
testified in the grand jury in November and December 2007. For one thing, Kohl
discovered that Blackwater management was involved in the preparation of the
written statements presented to the State Department; that
GJ.Ex.90/100-02; GJ.Ex.93/12-17, 42-44, 51-53; GJ.Ex.92/99-100;
GJ.Ex.91/13-15; see 10/27/pm/118 (Kohl suspected Blackwater was extending
these promises to itself and then presenting it on a platter to the State Department
to ratify). Frost, Mealy and Murphy also felt they were being penalized by
Blackwater for reporting their concerns about the shooting. 10/28/am/27;
GJ.Ex.90/113, 125; Patarini.Ex.11
27

And the guards also believed what they had told Blackwater about the
shooting had been withheld from State. 10/28/am/28; e.g., GJ.Ex.90/103-110
GJ.Ex.93/49-51, 55-59
From early on, thus, Kohl had serious concerns about obstruction by
Blackwater. 10/28/am/26-28. And although he was suspicious about how they
were written, Kohl believed he and his team should avoid all exposure to the
September 18 sworn statements. See 10/27/pm/108; 10/28/pm/14; 10/29/am/17,
33-34; e.g., Ex.62.##5161, 4366. To this day, the prosecutors have never seen
them. 10/28/pm/14, 17, 49; 10/27/pm/26; 11/2/am/79-80.
The September 16 oral statements, to Kohls mind, were a different matter.
As more Raven 23 guards testified in the grand jury, Kohl learned that whenever a
Blackwater guard is involved in a shooting, he and a team leader are called upon
to give immediate feedback to the State Department so State can make a quick
assessment of the situation and any attendant threat. 10/28/pm/6-7. These initial
interviews, Kohl also learned, are typically brief, unaccompanied by threats of job
loss or promises of immunity, and not intended to assess criminality or otherwise
pursue an administrative action against a shooter. 10/28/pm/10-12. As he saw it,
28
the initial oral interviews are done purely because theyre trying to understand
what happened and if ever there was [an agency] * * * that had a critical * * *
operational need for immediate feedback, * * * it was the U.S. embassy in
Baghdad, Iraq in September 2007. Id. Ponticiello agreed. I didnt believe that
any time any contractor * * * talk[ed] to a DSS agent it would equal a compelled
statement. 10/27/am/41. As a result of what they learned, Kohl believed he
could be privy to the initial interviews. 10/28/pm/13; 10/26/pm/79-81
(Ponticiello: we felt we were on safe ground in looking at the oral statements).
Unfortunately and in what the government acknowledges is a serious
breakdown in its taint procedures the prosecutors were unaware that their view
of the September 16 statements was not shared by Hulser. As noted, in October,
Hulser gave the FBI its marching orders to steer clear of all the defendants
statements to the DSS. 10/23/am/21-23. Mullaney, who communicated Hulsers
directives to the FBI, did not have a similar conversation with the prosecutors, and
Hulsers October emails were not sent to them. 10/26/am/73-74; 10/27/am/64-66;
10/28/am/71; 10/28/pm/68-71, 112-14; 10/22/pm/109.
According to the emails, Hulsers view of the September 16 statements was
first communicated to Kohl on November 29, 2007, in the context of Hulsers role
as pre-screener of materials for the prosecution team. In preparation for Raven 23
29
guard Murphys grand jury appearance on November 29, the prosecutors had
asked Hulser (via Mullaney) for Murphys statements to the DSS. 10/28/am/70.
Ponticiello received the written statement on November 28, Ex.62.#5979, but the
email containing the oral statement (to Kohl via Mullaney) did not come until the
next day and Kohl did not open it until after Murphy testified. Ex.62.#2523. In
a one-sentence parenthetical within the three-paragraph email containing
Murphys statement, Hulser conveyed his views about the September 16
statements. Id. ((While no Kalkines warning was given before these interviews, I
believe that we should treat all of their statements to the RSOs as compelled given
the practice of routinely giving the Kalkines warning to the participants in a
shooting)). Upon receiving the email that evening, Kohl responded to Mullaney:
Got it. Thanks Mike. Id. As Kohl later testified, his got it referred to
receiving the requested Murphy statement (which he had also gotten the night
before from Ponticiello) and with Murphys testimony behind him, Kohl did not
read down into the body of the email to Hulsers sentence about his general view
of the September 16 statements. 10/28/am/70-72.7
7
Earlier that week, Hulser sent the statements of Frost and Mealy,
again through Mullaney. Ex.62.#3477. This email did not state Hulsers view that
the September 16 statements should be considered potentially compelled (contrary
to the district courts suggestion, Mem.Op. 15 n.15), although it did advise caution
in questioning the witnesses to ensure their testimony was based solely on their
30

The disconnect between Hulser and the trial team continued into December
and the new year. On December 7, 2007, Mullaney told Hulser the prosecutors
wanted to interview DSS agent Carpenter and his deputy. Ex.57.#1636. Hulser
responded: because those agents reviewed and/or wrote a report based on
compelled statements, they are thoroughly tainted, and even the focus of the
investigative steps that they took would have been affected by the compelled
statements. Id. In a follow-up email to Mullaney a few minutes later, Hulser
more specifically spelled out his concerns about the September 16 statements.8
There is no indication in the email traffic that Kohl or Ponticiello received the
personal recollections, not any exposure to their fellow guards sworn statements.
Id. (recommended admonishments be made on the record). Kohl, who at the time
was in the throes of two other major cases, did not focus on Hulsers cautionary
instruction. 10/28/am/63-64, 66-69. Even without reading Hulsers advice, Kohl
nevertheless cautioned the witnesses before they went into the grand jury to be
careful to avoid referring to the other guards statements. 10/28/pm/99-103; see
10/14/pm/15
8
See Ex.57.#1636 (The RSO didnt get the written compelled
statements * * * until 9/18, so normally Id say there was a safe window following
the incident. The risk * * * is that the court may conclude that the entire
atmosphere following an incident was one of compulsion i.e., they all knew they
were going to be required to provide compelled statements (just as theyd done
following prior incidents) and so whatever they told the RSO agents (in
interviews, written reports or written statements) they believed was not voluntary.
Unfortunately, I think a court may find that belief reasonable given the consistent
practice of using the compelled forms).
31
follow-up email, and on December 20, Ponticiello sent a note to Mullaney
reflecting his unawareness of Hulsers concerns about the September 16
interviews. Ponticiello informed Mullaney of the upcoming Carpenter interview
(set for January 10), noted that Carpenter had an investigatory binder containing
notes of [the] oral interviews conducted prior to the warned, written statements,
and asked that the binder be reviewed by Hulser to screen out any information
that might involve or be derived from the written statements. Ex.60.#2204.
Mullaney did not tell Ponticiello to cancel the interview, and it was conducted as
scheduled. 10/26/am/27-28; 10/26/pm/81.
Unaware that Carpenter had been interviewed, Hulser on January 15
reiterated his view about the September 16 statements to Mullaney, and declined
to give him Carpenters notes. 10/23/am/35-36; Ex.57.#1658. Although Mullaney
testified that he would assume he forwarded the email to the prosecutors, and that
that was his practice, he acknowledged that a forwarded email was not found in
the system. 10/26/pm/6-9 (so I cant honestly say whether I did or I didnt); see
10/29/am/44-46 (Kohl: did not receive email; Mullaney did not communicate
Hulsers view to him); 10/26/am/29-30.
Indeed, on January 17 (two days later), a Kohl email reveals that he, too,
was unaware of Hulsers position. At the time, Kohl was arranging to interview
32
Lisa Lopez, one of the DSS agents who had conducted some of the September 16
interviews. 10/28/pm/17-19; Ex.67.#4491. In anticipation of the meeting, Kohl
asked Mike Posillico, a clean point of contact at State, to make sure all the DSS
investigator notes, bullets, and write-ups of the interviews predating the
September 18 statements are turned over to Ray Hulser so they could be used in
the interview. Ex.67.#4491. Posillico said he had spoken with Tampio (Hulsers
counterpart at State), who forwarded same to Ray already, and also told Kohl
that Lopez would bring her notes to the meeting. Ex.67.#4488-89.
Hulser, meanwhile, was unaware that arrangements had been made for
Lopez to hand over her notes. 10/23/am/34-35. In fact, when Mullaney separately
asked for the notes in February, Hulser demurred, and reiterated his view about the
September 16 statements. Hulser.Ex.6. Again, there is no indication that Hulsers
email was forwarded to the trial team. See 10/29/am/57-59 (Kohl: Mullaney did
not communicate this to him).
As Mullaney admitted at the Kastigar hearing, it was a mistake for him to
have operated as a go-between. 10/26/am/64-65; id. at 65 (not all the information
Im not it [was] not pass[ed] accurately); id. (there were miscommunica-
tions); 10/26/pm/9 (this is a breakdown on my part); id. at 24 ([i]ts clear I am
not a help to the process); id. at 43 (trial team was not well served by having me
33

in the middle). Looking back on it, Hulser, too, saw that while it first appeared
that the prosecutors were intentionally disregarding his advice, it seems to me
* * * they didnt actually get the exact advice that I had given. 10/23/am/68-89.
The trial team interviewed Lopez on January 25, and, as arranged, she gave
them her notes. 10/29/am/51-53. Again, based on his emails with Posillico, Kohl
thought Hulser had cleared Lopezs notes for his review. See 10/29/am/35-37, 42-
43, 51-55 (because he received Lopezs notes after asking that they be screened by
Hulser, Kohl thought we had gotten a green light from [Hulser] on the 9/16
interviews); accord 10/28/pm/112-14; 10/29/am/36.
See Ex.70 (2/1/08 investigative update).
Kohl testified that, had he known Hulsers views about the September 16
statements differed from his, he would have had a head-on discussion to try to
work it out. 10/29/am/45-48. I wouldnt simultaneously be sending e-mails
asking for Lopezs notes to be cleared while there [are] e-mails going in the
opposite direction from Ray. 10/29/am/46-47.9
See
10/19/am/91-94.
34
The head-on discussion between Hulser and Kohl occurred, finally, on
April 18, 2008. 10/26/am/31-38. That month, Kohl was seeking information from
State about prior incidents involving the Blackwater guards, and in an ensuing
email exchange (the first direct contact between Kohl and Hulser), their
differences of opinion about the September 16 statements became starkly apparent.
10/28/pm/19-24. On April 11, Kohl claimed he should have access to day-of
shooting reports because they are generated within hours of the event, without
Kalkines promises, and before State opens an investigation during which sworn
statements might be requested. Ex.68.#2719-21. But even beyond his legal point,
Kohl explained why he thought he and Hulser had been on the same page about
the September 16 statements:
[Y]ou have previously approved and cleared other materials that contain
statements made by the targets of our investigation, on the theory that the
reports and notes were generated prior to the existence of the sworn
Kalkines statements made by these individuals. For example, you have
approved, and we have received, the DSS notes of the interviews conducted
of each shooter on the day of the incident two days before the tainted
statements were generated.
Ex.68.#2720.
Seeing for the first time that Kohl might have the September 16 interviews
of potential defendants, Hulser stated the obvious: we need to assess whether
35
weve got a problem. Ex.68.#2719; 10/23/am/9.10 Mullaney, too, sounded an
alarm. [I realized] the trial team [has] something * * * they think theyre entitled
to, and the taint team says, you shouldnt have that. 10/26/am/66-67. I
obviously know I have a problem. Id.
At their April 18 meeting, Hulser continued to maintain that the September
16 statements were potentially compelled, and advised that the prosecutors should
not risk using them. 10/23/am/8-9, 45. Kohl countered that because the early
interviews were routine, unwarned, and preceded any investigation, the
government had a good chance of demonstrating they were not compelled. Id.; see
also Ex.68.#2704. Although Hulsers risk assessment differed from Kohls,
Hulser agreed Kohls position was reasonable. 10/23/am/8. And while Kohl was
not converted to Hulsers position, he decided not to fight it, and his take away
from the meeting was that the statements would not be used for any investigative
purpose. 10/28/pm/24-25; id. at 112 (we didnt need them); 10/29/am/78-83
(we hadnt [used the 9/16 interviews] at that point, and I thought [the] better
course [was] to not use them). Hulser also left with the view that the team would
not make any investigative use of the pre-September 18 interviews. 10/23/am/42,
10
See Ex.61.#2370 (Hulser: if you have notes of [9/16] interviews
* * * for any of your current subjects[,] I did not approve that.).
36
46.11
Everyone also agreed that Mullaney would get out of the middle, leaving
the trial team to work directly with Hulser. 10/26/am/37; 10/28/pm/27.
According to Kohl, it was also understood that any final decisions would be made
by the prosecutors. See 10/29/am/48 (in the end, the National Security Division
has to [decide] how its going to do its case); 10/29/am/81 (Rays position has
always been it is your call); e.g., Ex.57.#1636 (Hulser to Mullaney re: overture to
Carpenter: Are you sure you need to interview them at this point?; This is your
call, of course).
11
Kohl also believed that the matter of the interview notes could be
revisited later, 10/28/pm/24-25, and although Hulser did not testify to that precise
point, that is consistent with Hulsers acknowledgment, throughout the
investigation, that time or developing facts might change the risk calculation vis-a-
vis the September 16 statements. See 10/23/am/72-73 (advice in April 2008 was
that no use be made of oral statements at this point); 10/23/am/10-12 ([a]gain,
this is a fact-based inquiry * * * So its certainly something I would expect the
team to evaluate at different stages along the way, balancing the potential value
of the statements against the possibility they could later be deemed compelled);
10/22/pm/104-05 (its always about risk assessment; conclusion about
compulsion could change over time); 10/22/pm/111 (in evaluating the risks, you
can decide later that you absolutely must talk to [tainted investigators]); accord
10/22/pm/112; 10/23/am/38; Hulser.Ex.6; Ex.57.#1636.
Mullaney, too, recalled the group agreed to continue the investigation

without the September 16 statements, but that the matter would be subject to
further review. 10/26/pm/22-24; 10/26/am/37-38 (same).
37

H. The Prosecutors Travel To Baghdad, Decide To Charge A Mass
Liability Theory, And Look Into (But Abandon) Obstruction
And False Statement Charges.
Starting in December 2007, Kohl prepared periodic updates for his superiors
in the U.S. Attorneys Office and DOJs National Security Division. 10/28/am/21-
24; see Ex.70. In the first three, 12/14/07, 1/10/08, 2/1/08, he listed four Raven 23
guards Liberty, Slough, Slatten and Ridgeway as potentially facing
manslaughter charges. Id. Although Kohl knew from Murphy, Frost and Mealy
that Heard and Ball had also shot, he had not decided whether to recommend that
they be charged. 10/28/am/25. Indeed, at that point, while the cooperating guards
were saying Liberty, Slough, Slatten, and Ridgeway had crossed the line, they
were speaking sympathetically about Heard and Ball and Kohl took their views
seriously and was proceeding carefully. 10/28/am/25-26. Also at the time, the
prosecutors had not decided whether to charge the shooting at the white Kia.
10/26/pm/85-86.
See
GJ.Ex.90/133; GJ.Ex.93/93-95.
Kohl and Ponticiello went to Baghdad with the FBI in February 2008,
10/27/am/28-29, to visit the scene and, primarily, to interview the Iraqi victims,
witnesses, and U.S. military who had been in the Square on the 16th. 10/27/pm/77-
38
80; 10/28/am/31, 37-39. Also, believing they were justified in learning about the
guards immediate post-shooting statements (this was three months before the
April meeting with Hulser), the team interviewed the DSS agents who had
conducted the September 16 interviews, and asked about the guards statements.
10/27/pm/45-49; Ex.70 (3/10/2008 update).
During the trip, two other interviews struck Kohl. He spoke to the surviving
passenger of the box truck that was right next to the Kia, examined the two cars,
and saw for himself (based on a small indentation on the truck), that the Kia would
have been moving slowly. 10/28/am/43-46. Kohl also met with Colonel Boslego,
who, among other things, explained that firing an M-203 grenade in a civilian
environment is virtually per se reckless. 10/28/am/42; 10/29/am/14. Kohl knew
from Heards admissions to his teammates and from forensics that Heard had fired
an M-203, 10/28/am/42; 10/27/am/45-46, so despite the other guards positive
feelings about him, Kohl added Heard as a target in March. 10/28/am/42; Ex.70.
Ball, however, was a closer call. Although Kohl had decided in February
that the shooting at the Kia was unjustified, his core witnesses still gave those who
had shot at that car the benefit of the doubt. 10/28/am/46-47. Also, there was a
discrepancy in how the witnesses were seeing things: his fellow guards believed
Balls shots were limited to the Kia, but several Iraqi witnesses saw fire coming
39
from the first vehicle (Mealy and Balls) to the west of the Square, indicating to
the government that Ball had shot west (since Mealy did not fire). 10/28/am/47-
48, 51-52; 10/27/pm/80-84. Also at the time, Kohl was adjusting his theory of the
case: having first set out to identify which shooter was responsible for which
victim, he decided to pursue instead a mass liability theory that is, he would seek
to charge those who joined the shooting even if he could not specifically identify
who or where they shot. 10/28/am/40-41, 52-53 (realized that attempt to match
each shooter with specific victim was setting the bar too high). As the district
court described the governments theory a month before the Kastigar hearing:
I think theres this theory of * * * mass liability, this kind of joint or group
liability, that when everybodys shooting into a situation and people die,
then all those people are responsible for the deaths even if one is not able to
identify whose bullet killed whom.
See 9/14/2009.Tr.62; accord Ex.401.#1353 (GJ.Tr.11/20/08/am minutes). Thus,
despite the discrepancies in the testimony about other shots, Kohl decided in April
that Ball should be added as a target. See 10/28/am/52-53 (if they joined in this
gunfight * * * [t]heyre going to be sent target letters); Ex.70.
In February 2008, Kohl also decided to investigate possible obstruction by
Blackwater. As he had learned, Frost, Mealy and Murphy believed that they were
being penalized for coming forward, and that Blackwater had withheld critical
40

information from the State Department. 10/28/am/27-28. Also, Kohl was
suspicious that Blackwater had been very much entangled in the preparation of
the September 18 statements, 10/28/am/28, 30, and he wanted to examine the
exchanges between Blackwater management and the guards on the matter.
10/28/pm/37-44 (my concern * * * was manipulation of the statements). Kohl
also thought it likely the guards would have conveyed details of the shooting to
family, friends and other Blackwater personnel. 10/28/pm/39.
Thus, Kohl prepared, and Patarini swore out, an affidavit for a search
warrant of all the Raven 23 guards email accounts. 10/22/pm/8; Patarini.Ex.21;
see 10/22/pm/13-14, 64-67 (Patarini: search warrant related to broader
investigation into obstruction by Blackwater management).12 Patarini first looked
at the search warrant materials in spring or summer 2008, 10/22/pm/17-19, and
when he did, he saw drafts of Slattens and Balls September 18 statements.
10/22/am/10-12, 39-40; 10/22/pm/17, 46. Kohl thereafter tabled this aspect of the
12
Patarini.Ex.21 15;
id. at 17-18
Id. at 19; see also id. at 22
41

investigation, and no obstruction charges were presented to the grand jury.
10/22/am/13-14.13
In late August 2008, Kohl asked the FBI for the reports the team had
previously received on the Raven 23 guards September 16 statements.
10/28/pm/31-35; 10/22/pm/39-44. At this point, Kohl had made his case for
manslaughter charges, and was considering whether to add false statement
charges. Id.; Patarini.Ex.57. As Patarini explained, because we already had
* * * the physical evidence, * * * [and] the witnesses, Iraqis, military, others, the
only point in looking at the September 16 statements was to consider false
statement charges. 10/22/pm/59-60. In the end, the team did not present such
charges to the grand jury. 10/28/pm/34-35.
I. Realizing The Testimony Of Some Grand Jury Witnesses May

Have Been Affected By Exposure To The Defendants Statements,
The Government Presents A Scaled-Down Case To A Second
Grand Jury.
Ex.308.#5895-96. When
13
Hulser testified that had he known about the search warrant request
(he did not), he might have authorized it so long as the results could be filtered
first. 10/23/am/28-29. Earlier in 2008, when Kohl received drafts of unsigned
statements from Blackwater in response to a subpoena, he sent them on to Hulser
without reading them. 10/28/pm/14-17; see 10/26/pm/88-89; Ex.215.#3905
(Ponticiello; same).
42
AUSA Jon Malis joined the prosecution team at the end of August 2008, he
reviewed the transcripts and saw that some witnesses testimony may have been
affected by exposure to the guards compelled statements. 11/2/am/6, 21-22.
Defense counsel, also, raised Garrity/Kastigar concerns with the prosecutors,
10/29/am/106, so a Kastigar hearing was clearly in the offing. 10/29/am/113.
In fall 2008, Kohl and Malis met with Hulser and Karla Dobinsky, an
experienced DOJ Garrity lawyer, and decided to present a streamlined case to a
second, clean grand jury. 11/2/am/23-29; 10/26/pm/37 (Mullaney: presentation
would be as bare bones as possible). The prosecutors wanted to tap only those
witnesses they felt confident would survive a Kastigar hearing (i.e., who, under
oath, would and could testify that their accounts were based on firsthand, wholly
independent knowledge) and they quickly returned to Frost, Murphy and Mealy.
11/2/am/22-28.
Although other Raven 23 guards had also provided testimony against the
defendants, the prosecutors were less confident about how they would hold up at a
hearing. See 10/29/am/113-14 (Kohl: theres incredible pressure on these * * *
contractors in terms of job loss and intimidation). The prosecutors were also
concerned that other witnesses, friends of the defendants and hostile to the
government, might try to sabotage the case by telling the Kastigar court that their
43

grand jury testimony was tainted. 11/3/am/69-70; 11/3/pm/5-9; see 10/29/am/112-
14 (Kohl: noting great potential for mischief). So with Hulser and Dobinskys
guidance, the team redacted from the earlier testimony transcripts of Frost, Mealy
and Murphy statements that appeared to be influenced or shaped by the mens
exposure to the defendants compelled statements. 11/2/am/29-41; 11/2/pm/30-
33; 10/23/am/58-59. And as Malis explained to his supervisors, for purposes of
the presentation to the new grand jury, both the September 16 and September 18
statements were entirely off limits. 11/2/am/68-70; Ex.308.#5941-43.
The second grand jury convened on November 20, 2008. The only live
witness was clean FBI Agent Robyn Powell, who had not seen any of the
defendants statements, oral or written. Ex.308.#5942; 10/22/am/45.
See
GJ.Tr.11/20/08/am/22-24, 74-75; 11/20/08/pm/8-9; 12/2/08/pm/3-4.
GJ.Tr.11/20/08/am/4-24, 76-78; 11/20/08/pm/9-
37; 11/25/08/3-40.
44
Id.; see GJ.Exs.4, 9-16, 18-21, 23-32,
36-42, 46-50, 52-66, 71-74, 76-79 GJ.Exs.87B-R, 88C-P,
101-05
GJ.Exs.8, 22, 32, 33-35, 43-45, 51, 67-68, 75, 82-84
.14
GJ.Tr.11/20/08/pm/17-18, 28-29; GJ.Tr.11/25/08/am/8-9; see
GJ.Ex.1 at 2, 3, 5-6); id. at 4-14
14
GJ.Ex.85
45
15
GJ.Tr.11/20/08/am/24-60; GJ.Tr.12/2/08/am/6-7,
12; Ex.401.##1374, 1358-60 (minutes).
GJ.Tr.11/20/08/am/61-72; GJ.Ex.1/32-37.
15
GJ.Tr.12/2/08/am/8.
GJ.Ex.99/4-5.
Id. at 7-9, 12-15; id. at 19
id. at 19-20
Id. at 15-16.
Id.
at 19-20.
Id. at 21-22
See GJ.Tr.11/20/08/pm/27
46

id.,
GJ.Tr.12/2/08/pm/12-17, 24-25,
31-36, 44.
Because the second grand jury was presented with a much abbreviated case,
it heard neither all the inculpatory, nor all the exculpatory, evidence from the first
grand jury.16 As for the exculpatory testimony, however (i.e., that the convoy had
taken fire), the government introduced evidence that made the same point.
See GJ.Tr.11/25/08/56-60
GJ.Ex.96.17
16
E.g., 11/3/am/10 (Raven 23 guard Vargas: maybe like five seconds
after we pulled into our positions, we started taking fire); id. at 12-13 (Skinner:
heard gunfire and saw two distinct separate muzzle flashes); id. at 17 (Childers:
did not see, but heard, incoming gunfire); id. at 18 (Randall: I saw a couple
rounds impact the side of the command vehicle).
17
See also GJ.Tr.11/25/08/76-79
GJ.Tr.12/2/08/am/12-13
47
e.g., GJ.Tr.11/20/08/am/41
E.g., GJ.Ex.94/32-35
GJ.Tr.11/20/08/am/
42, 44
accord
GJ.Ex.89/61-62; GJ.Ex.90/35, 46, 59-62
GJ.Ex.93/113 See also 11/3/am/31-34 (Malis:
believing the guards claim was self-defense, we presented exculpatory evidence
on the self-defense issue).
GJ.Tr.12/2/08/pm/3-45; GJ.Ex.107. On
48
December 4, 2008, the grand jury found probable cause to charge the defendants
with manslaughter, attempted manslaughter, as well as the Section 924(c) count.
See Indictment.
J. The District Courts Opinion
On December 31, 2009, the district court dismissed the indictment. At the
threshold, it rejected the governments view that the guards September 16
statements were not compelled under Garrity. Compare Mem.Op. 31-46 (finding
that all the guards believed the first DSS interviews were not voluntary, and that
because they had previously reported shootings on forms bearing the Garrity
warnings, they reasonably believed they were operating under the same ground
rules on September 16) with Govt Post-Hearing Mem. 17-26 (arguing that first
debriefings were not Garrity-compelled because they were part of the guards
routine, job-related reporting obligations, designed to get an immediate sense of
what had happened, and that the guards would not reasonably have viewed them
as part of an investigation into their conduct).
The court also found, in details we discuss in our challenge to its rulings,
that all the grand jury testimony of Murphy and Frost, as well as Frosts journal,
were tainted by their exposure to the defendants compelled statements in the
news. Mem.Op. 51-66. The court similarly found the government failed to show
49
Ridgeway and the Iraqi eyewitnesses were not tainted by press accounts of the
statements. Mem.Op. 66-75. The court made no findings of taint, one way or the
other, as to the testimony of Raven 23 guard Mealy, and Colonels Boslego and
Tarsa.
Most of the Kastigar hearing and the courts opinion focused on the
September 16 statements: in addition to finding they were Garrity-compelled, the
court found the trial team had recklessly pursued them in direct contravention
of taint attorney Hulsers directives. Mem.Op. 13-20, 75-85.18 Importantly, the
court did not find the governments exposure to any of the defendants statements
led to the presentation of any evidence in the grand jury. Its findings of
evidentiary taint, rather, were premised on the witnesses exposure to the
defendants statements via the media, not the prosecutors. See Mem.Op. 51-75.
The prosecutors pursuit of the September 16 statements, thus, only figured into
the courts analysis regarding non-evidentiary use. On that issue, the court found
the governments exposure to Heards and Balls compelled statements played a
central role in the decision to charge them, Mem.Op. 75-78, and that in light of
18
While the court did not dispute the prosecutors testimony that they
had not seen the September 18 statements, it found that during the investigation,
the team learned information derived from some of the defendants later
statements to DSS investigators. Mem.Op. 79-80.
50

the governments aggressive pursuit of the statements, it utter[ly] fail[ed] to
show, vis-a-vis all the defendants, that it made no significant non-evidentiary use
of them. Mem.Op. 78-85. The court concluded that the governments evidentiary
and non-evidentiary Kastigar errors were not harmless beyond a reasonable doubt.
Mem.Op. 88-89.19
SUMMARY OF ARGUMENT
Below, the government argued that the September 16 statements were not
compelled under Garrity and thus not subject to Kastigar. We are not renewing
that argument here. As the district courts opinion makes clear, the governments
19
Before the district court ruled, the government moved to dismiss the
indictment against Slatten without prejudice. D.C.No.10-00005(Dkt.30). It
concluded that, based on Frosts testimony at the Kastigar hearing, his grand jury
testimony had been affected by Frosts exposure to
Slattens compelled statement, see infra, at 61-62, and that it could not confidently
say the presentation of the tainted testimony was harmless beyond a reasonable
doubt. In response, Slatten moved for dismissal with prejudice, alleging
prosecutorial misconduct. Dkt.34. The court denied that motion, as well as a
similar one from Ball. D.C.No.08-360(Dkt.231).
In dismissing the indictment against all defendants, the court dismissed as

moot the governments motion to dismiss against Slatten. Mem.Op. 90 n.67.
Although we are not revisiting our view that this indictment is insufficient as to
Slatten, we hold open the prospect of reindicting him with untainted evidence not
presented to this grand jury. Slatten thus remains in this appeal because the
courts broad disqualification of evidence (e.g., all of Frosts and Murphys
testimony, including ) bears not only on
whether the case may proceed against the other defendants, but on the viability of
any future indictment of Slatten as well.
51

exposure to the September 16 statements did not result in any evidentiary taint in
the grand jury, but was relevant only to the issue of non-evidentiary use. As we
contend, even if Kastigar prohibits non-evidentiary use (an open question in this
circuit), the government did not make prejudicial non-evidentiary use of the
defendants statements in securing this indictment. And because the governments
exposure to the September 16 statements did not infect the indictment and as our
case has been wholly built without them we claim no right, should this Court
reinstate the indictment, to use the statements in any way.
1. Contrary to the district courts findings, the lions share of the
evidence presented to the grand jury was free of Kastigar taint. In fact, only very
small and isolated portions of testimony were tainted and, as to the rest, the
record demonstrates a lack of taint by a preponderance of the evidence.
a. At the Kastigar hearing, Raven 23 guards Murphy and Frost
admitted that bits of their grand jury testimony against
may have been affected by reading reports of their statements in the press. The
rest of Murphys and Frosts testimony, in contrast, was first-hand and anything
but speculative. By disqualifying all their testimony against all the defendants, the
52

district court clearly erred and it also failed to conduct the careful Kastigar
inquiry this Court requires.
b. The district court clearly erred in finding that the grand jury
accounts of the percipient Iraqi eyewitnesses were tainted by stories (in the
American press) referring to the defendants Garrity statements.
Because the content of the Iraqi
witnesses testimony ( ) bore no relation to the stories
( ), the witnesses testimony was
not tainted by any exposure they may have had to the immunized statements as
reported in the press.
c. After the shooting, Raven 23 guard Frost wrote a detailed and
emotional account of what happened in the Square and at Blackwater camp shortly
thereafter.
The court found that even if that was his principal
motivation, the journal was tainted because Frosts exposure to the defendants
53

statements in the press also played a role in his decision to write. That finding is
clearly erroneous. Because Frost would have written his journal anyway,
regardless of what he may have read in the news, the journal survives Kastigars
test for wholly independent evidence.
d. The district court clearly erred in disqualifying all the grand
jury evidence of Raven 23 guard Jeremy Ridgeway, who pleaded guilty to two
manslaughter counts.
e. Rightly viewed, the overwhelming evidence in the grand jury
the physical evidence, the testimony of Raven 23 guard Mealy and Colonels
Boslego and Tarsa (none of which the court found was tainted), the bulk of the
Murphy, Frost and Ridgeways accounts, as well as the evidence from the Iraqi
eyewitnesses was not tainted. Given the strength of that evidence and the
relative insignificance of the tainted testimony, the grand jury would have found
54
probable cause to indict, and any Kastigar error as to Slough, Liberty, Heard, and
Ball was harmless beyond a reasonable doubt.
2. The district court also erred in finding the government made
significant non-evidentiary use of the defendants Garrity statements.
Where, as here, an indictment is supported by sufficient and wholly independent
evidence, the Fifth Amendment does not require the government to prove that, in
recommending charges, a prosecutors thinking was unaffected by his exposure to
a defendants immunized statement.
In any event, the decision to recommend charges against Heard and Ball
was based not on the governments exposure to their Garrity statements, but on
the independent evidence against them, and the defendants September 16
statements did not otherwise guide this investigation and prosecution. By the end
of 2007 well before prosecutors saw the statements the defendants had been
identified as shooters (by Frost, Mealy, Murphy and the Iraqi eyewitnesses), and
the FBI also knew, based on interviews and the physical evidence, where the
group had shot. The statements, thus, did not provide the government with a
wealth of valuable information, as the district court thought; in fact, the
information the court deemed so important (the defendants specification of
particular targets) was irrelevant to the governments theory of the case by which
55

all who joined the shooting should be held accountable, regardless of where,
particularly, they may have shot.
As the government concedes, its taint procedures broke down: believing
they were entitled to see the guards September 16 statements, the prosecutors
sought them out. However, the district courts essential finding that because
they pursued the statements, the prosecutors must have made significant non-
evidentiary use of them is wrong as a matter of fact, law and logic.
ARGUMENT
THE INDICTMENT SHOULD BE REINSTATED .
I. THE DISTRICT COURT CLEARLY ERRED IN FINDING

PERVASIVE EVIDENTIARY TAINT IN THE GRAND JURY. IN
LIGHT OF THE OVERWHELMING UNTAINTED EVIDENCE
SUPPORTING PROBABLE CAUSE TO INDICT, THE
PRESENTATION OF SOME TAINTED EVIDENCE WAS
HARMLESS BEYOND A REASONABLE DOUBT.
10/21/am/69.
Many people were in Nisur Square shortly after noon and when the Raven 23
convoy left some 15 minutes later, many lives had been lost, broken or forever
changed. The grand jury was presented with vivid and often emotional accounts
from those who bore witness to what happened that day. To be sure, in the days
and weeks that followed, press accounts alluded to, and sometimes directly quoted
56
from, the defendants Garrity statements. And, yes, this Courts Kastigar
requirements are particularly demanding. See United States v. Helmsley, 941 F.2d
71, 82-83 (2d Cir. 1991). But they are not insurmountable and by disqualifying
in toto the testimony of percipient eyewitnesses to a singularly violent and
unforgettable event, the district court was true to neither the letter nor the spirit of
this Courts teachings.
In North I, 910 F.2d at 860-864, the grand jury and trial witnesses soaked
themselves in immunized testimony to refresh their memories about who had said
or done what years earlier in a series of complicated foreign policy transactions.
Even then, the Court did not foreclose the prosecution under Kastigar, but
remanded for an inquiry into what testimony was tainted and what was not, and
then, if necessary, into harmlessness. Id. at 872-73. Here, the court not only failed
to appreciate the difference between a single, uniquely dramatic event and
countless meetings spanning several years, it also did not conduct the careful
Kastigar inquiry North requires. Contrary to its decision, the overwhelming
majority of testimony in the grand jury was free of Kastigar taint and given the
strength of that evidence, any Kastigar error as to Slough, Liberty, Heard, and Ball
was harmless beyond a reasonable doubt.
57
A. Standards of Review
A finding that the government used a defendants immunized testimony is
factual, reviewed for clear error. North I, 910 F.2d at 855. A finding is clearly
erroneous when although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction that a mistake has
been committed. United States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir.
1992) (citation, quotation omitted); id. (standard is not without content); United
States v. Kilroy, 27 F.3d 679, 687 (D.C. Cir. 1994) (finding is also clearly
erroneous if induced by an erroneous view of the law).
This Court may review the record de novo to determine an errors
harmlessness. Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991); see also
United States v. Nanni, 59 F.3d 1425, 1433 (2d Cir. 1995) (in evaluating Kastigar
error, whether untainted evidence supported probable cause for search-warrant
affidavit is legal question, reviewed de novo).
B. Kastigar and North: The Applicable Legal Principles
Under Kastigar, when the government prosecutes a previously immunized
witness, it is prohibited from using not only the immunized testimony itself
against the witness, but any evidence derived directly or indirectly therefrom.
North I, 910 F.2d at 853-54. In such a case, the government must prove, by a
58
preponderance of the evidence, that all of the evidence it proposes to use was
derived from legitimate independent sources. Id. at 854 (quoting Kastigar, 406
U.S. at 461-62). The burden is heavy and this Court has set the bar high: the
government must show its witnesses testimony was not refreshed[,] * * *
shaped, altered, or affected by their exposure to the immunized testimony. Id. at
860-61, 863; United States v. Poindexter, 951 F.2d 369, 373 (D.C. Cir. 1991).
Nor can immunized testimony be used to obtain investigatory leads, United States
v. Ponds, 454 F.3d 313, 327-28 (D.C. Cir. 2006); focus an investigation on the
witness, id.; or motivate another witness to give incriminating testimony. United
States v. Hylton, 294 F.3d 130, 134 (D.C. Cir. 2002).
The Kastigar inquiry is searching in other respects as well. Not only must
the court inquire into the content as well as the sources of the grand jury * * *
testimony, it must do so witness-by-witness and, if necessary, line-by-line and
item-by-item. North I, 910 F.2d at 872 (emphasis in original); id. at 862 (in order
to separate the wheat of the witnesses unspoiled memory from the chaff of [the]
immunized testimony); United States v. DeDiego, 511 F.2d 818, 822 (D.C. Cir.
1975) (court must separate[] the tainted from the untainted). If the government
fails to carry its Kastigar burden as to any item or part of [a witnesss]
testimony, the court must then evaluate the tainted evidence in light of evidence
59

from independent sources, and determine whether the Kastigar error was harmless
beyond a reasonable doubt. North I, 910 F.2d at 873; Ponds, 454 F.3d at 328-29
(the degree of the Kastigar violation must be assessed). If the error did not
contribute to the [outcome] (here, the grand jurys decision to indict), the
indictment should not be dismissed. See Ponds, 454 F.3d at 328 (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)).
C. The District Court Clearly Erred In Finding That Murphy And

Frost Could Not Distinguish What They Saw In The Square From
What They Read In The Press And It Failed, As Required By
North, To Separate The Wheat Of Their Unspoiled Memories
From The Chaff Of The Immunized Statements.
10/14/pm/6-9, 55-57, 64-65; 10/21/am/82; 10/21/pm/25-
26; see 10/14/pm/74, 77 As the hearing also revealed,
two pieces of Frosts and Murphys grand jury testimony against Slatten and/or
Slough were affected by their exposure to those mens statements. See Mem.Op.
53-56. Based on that evidence of taint and its notion that Frost and Murphy
were thoroughly immersed in all the defendants statements the court found
they were unable to segregate what they actually saw in Baghdad from what they
60

had read in the press, and disqualified all their testimony against all the
defendants. Mem.Op. 52, 57-58. In so doing, the court clearly erred.
1. Background: The Tainted Testimony
GJ.Ex.89/58, 60.
GJ.Ex.89/60; see also GJ.Ex.90/24-25
id. at 31
GJ.Ex.94/20-22.
Id. at 22-23.
61
GJ.Ex.94/23
id.
id. at 21-22
see GJ.Ex.94/54
10/14/pm/103-06; see 10/21/pm/30, 44
10/14/pm/112-16.
2. Frosts And Murphys Isolated And Admittedly Speculative

Testimony About Does
Not Cast Doubt On The Independence Of All Their First-
Hand Observations.
62

GJ.Ex.94/21-
23.
GJ.Ex.94/39-40; GJ.Ex.90/50-52.
GJ.Ex.94/23-24
10/14/pm/125-26; see also 10/14/pm/45
See 10/15/am/57-59, 68-69; 9/18 statement.
63
e.g., GJ.Ex.94/43-44
GJ.Ex.90/57
See supra, at
12-15.
Cf. United States v.
Lipkis, 770 F.2d 1447, 1451 (9th Cir. 1985) (where witness is exposed to two
substantially identical statements, one immunized and one not, the government
need not prove his testimony was based only on the non-immunized statements).
64

20
This is simply not a case, like Poindexter, where a witness (Oliver North)
completely steeped himself in immunized testimony concerning a complicated
series of events (the sale of arms to Iran, the illicit diversion of proceeds to the
Nicaraguan contras, the attempted cover-up) spanning several years. See 951 F.2d
20
In not even considering any of this evidence, the district court relied
on its finding that Frost and Murphy were thoroughly immersed in all the
defendants compelled statements. Mem.Op. 52; id. at 52-53 (stressing
unbounded exposure to statements). Although we do not mean to quibble with
the court,
the courts emphasis on their total immersion in
all the defendants statements paints a greatly distorted picture. Without doubt,
the events of Nisur Square received widespread publicity.
see infra, at 69-70
E.g., Def.Ex.2. One broadcast, forwarded by a Raven 23 guard to his teammates,

claimed to have all 19 sworn statements, but contrary to the courts suggestion,
Mem.Op. 52,
See 10/14/pm/109-10
Murphy.Ex.8
To say that Murphy and Frost immersed themselves in the defendants

statements because they read these and other stories is to make a significant and
mistaken leap of fact, See
10/21/pm/39
But even more importantly, it is the specifics of a
defendants statement (e.g.,
) not press accounts carrying more general assertions about
that bear on Murphys and Frosts testimony (e.g.,
). The district courts reliance on total immersion
indiscriminately lumped all that together, and further skewed its analysis.
65

at 371-72, 375-76. Here, Murphy and Frost testified about one brief, uniquely
vivid and unforgettable event an extraordinarily violent incident, as the district
court put it. Mem.Op. 49. The great bulk of their testimony, unlike the two pieces
of tainted testimony, relayed their direct (and often emotional) first-hand
observations. Also unlike Oliver North who, having studied [the
immunized testimony] very carefully, said he could not segregate his own
recollection from it, 951 F.2d at 375
10/14/pm/16; 10/21/am/97.
See supra, at 61-62.
The government, of course, may not point to a witnesss untainted evidence
in an effort to validate his tainted evidence. See Poindexter, 951 F.2d at 376. But
the converse, contrary to the district courts apparent assumption, is also not true.
Where some of a witnesss testimony is tainted, the testimony that is
66
demonstrably free from taint, Mem.Op. 57, is not to be somehow disqualified by
association. And a finding of taint does not relieve the court of its obligation to
determine, line-by-line and item-by-item if necessary, the testimony that is taint-
free. North I, 910 F.2d at 872-73. Here, with no such inquiry, the court threw out
the good with the bad which is exactly what North says it may not do.21
D. The District Court Clearly Erred In Finding That The Iraqi

Eyewitnesses Grand Jury Testimony Was Tainted.
As noted, when the FBI went to Baghdad in October 2007, Colonel Faris
introduced the agents to many Iraqis who were in Nisur Square during the
shooting. On the basis of the Iraqi eyewitness interviews, the FBI developed a
working understanding of who in the convoy had shot and a number of the
witnesses accounts were incorporated into a summary of evidence against each
defendant presented to the grand jury. See 10/21/pm/116-17; GJ.Ex.107.
At the Kastigar hearing, and over objection, the court ruled that the
government did not need to present all the Iraqi witnesses for cross-examination.
21
The court chides the government, among other things, for not
memorializing its witnesses testimony at the outset of the investigation and not
advising them in October 2007 not to seek out press reports. Mem.Op. 58-59.
The court fails to note, however, that even by its own reading of the record, the
Raven 23 guards were exposed to the compelled statements in September 2007,
before the FBI set foot in Baghdad, and that almost all the guards (on the advice of
Blackwater) refused to give statements to the FBI on that trip.
67

10/19/pm/40-47, 78-84. As the court recognized, the government may meet its
Kastigar burden through hearsay, 10/19/pm/45-47 and indeed, this Court has
said the government may try to show in any fashion or through use of any
techniques that a witnesss evidence was not tainted. United States v. North, 920
F.2d 940, 943 (D.C. Cir. 1990) (North II).22
In the end, however, the court found the testimony of all the Iraqi
eyewitnesses who helped identify the shooters was tainted. Its reasoning was
essentially three-fold: 1) that the defendants compelled statements were widely
reported in the weeks following the shooting; 2) that several Iraqis admitted to
being exposed to the statements, thus illustrating the taint problem; and 3) that the
FBIs protocols for ensuring that the other witnesses testimony had not been
affected by the publicity were deficient. Mem.Op. 71-75. Again, the court clearly
erred.23
22
See also United States v. Daniels, 281 F.3d 168, 181 (5th Cir. 2002)
(Kastigar evidence presented via FBI reports, grand jury transcripts and case
agents testimony); United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir. 1995)
(government bore Kastigar burden via declarations and documents; no
requirement that hearsay witnesses be presented for cross-examination); United
States v. Rogers, 722 F.2d 557, 560 (9th Cir. 1983) (declarations).
23
See GJ.Ex.1
68

1. Background: A Sense Of The Publicity
As the court found, the Nisur Square shooting generated instant headlines.
Def.Ex.35
Def.Ex.23
Id. accord
Def.Exs.22, 34, 36.

24
Id. at 1-14. The district court does not appear to have addressed this
testimony in dismissing the indictment, focusing instead on those who helped
identify the shooters. See Mem.Op. 71 (government presented the statements of
twenty-two Iraqi witnesses * * * to support the governments allegations against
every defendant) (citing GJ.Ex.107,
); id. (defendants maintain the
governments failure to present these witnesses for cross-examination * * *
requires dismissal of the indictment). In any event, for the reasons discussed, to
the extent the court factored the testimony of these other Iraqis into its dismissal
decision, it similarly erred.
24
E.g., Def.Ex.30
Def.Ex.25
Def.Ex.40
Def.Ex.44
accord Def.Exs.5, 24, 26, 27, 28, 31, 32, 33, 37, 38, 39, 42, 45.
69
Def.Ex.2.
Murphy.Ex.9.25
Def.Ex.7.
Id.
Def.Ex.8, 14
Def.Ex.9, 15.
25
See
E.g., Def.Ex.4
Def.Ex.6
Def.Ex.11, 12, 13; see also Def.Ex.2

Def.Exs.11, 12.
70
2. The District Court Failed, As North Requires, To Examine

The Content Of The Iraqi Eyewitnesses Grand Jury
Testimony And To Determine Whether Their
Identification Of The Shooters Was Affected By Any
Exposure They May Have Had To The Press.
In finding that the grand jury testimony of all the Iraqis who helped identify
the shooters tainted the indictment, the court focused on their likely exposure to
the widely reported press accounts of the guards statements (i.e., that they
were responding to hostile fire) in the weeks following the shooting. Mem.Op.
72. Putting aside several of the courts ancillary assumptions, see infra, n.28, its
analysis falters on a most basic level. As this Court has held, it is not a witnesss
mere exposure to immunized testimony that taints him. The relevant Kastigar
inquiry, rather, is whether the content of his testimony was affected or shaped by
that exposure. See North II, 920 F.2d at 942 (Kastigar call[s] for an inquiry * * *
into the content and circumstances of witnesses testimony); id. (court must
determine what additional knowledge, if any witness gleaned from exposure to
immunized testimony) (citation, quotation omitted); id. at 943 (government must
prove witness did not draw upon the immunized testimony to use it against the
defendant); id. at 946; North I, 910 F.2d at 872.26
26
Of course, if a witness is motivated to testify based on exposure to an
immunized statement, his testimony may be thereby tainted. North II, 920 F.2d at
942. Here, the court did not suggest that the Iraqis who were in Nisur Square on
71

As noted, the Iraqi eyewitness accounts were summarized in the grand jury
by FBI Agent Powell.27
See,
e.g., GJ.Tr.12/2/08/pm/20-23
id. at 26-27
id. at 6-7, 11
id. at 42-44
GJ.Ex.107/1-8.
E.g.,
GJ.Tr.12/2/08/pm/6-9
the 16th were somehow motivated to talk to investigators based on something they
may have later read in the press. The court, rather, seems to have assumed the
obvious: the Iraqi witnesses were motivated not by anything they read, but
because they or their friends and loved ones were shot at, wounded, or killed that
day.
27
See GJ.Tr.11/20/08/am/74-75
GJ.Tr.11/20/08/am/74-78;
11/20/08/pm/9-37; 11/25/08/3-40; 12/2/08/pm/3-49.
72

id. at 11
GJ.Tr.12/2/08/am/4
Thus, the district courts reliance on the wide dissemination of these reports
misconceives the Kastigar inquiry for even if the Iraqi witnesses were exposed
to such reports (even pervasively so), that exposure could not have affected their
particular identification of the shooters.28
28
The government need not negate all abstract possibility of taint, United States v.
Schmidgall, 25 F.3d 1523, 1529 (11th Cir. 1994), and these few
stories represent no more than that. See Kilroy, 27 F.3d at 687 (governments
Kastigar burden not defeated where record silent as to whether auditor who was
prompted to investigate defendants fraud had read article relating to his
immunized statements). Indeed, even more generally, there is nothing to suggest
that Arabic-speaking Iraqis, see 10/15/am/89; 10/16/pm/19; 10/19/pm/69
(interviews conducted through interpreters), were logging onto the ABC website,
reading The Times, or otherwise following the American press. And although the
defense said it understood that Al-Jazera had Blackwater accounts on its website
and that its very likely the Iraqi witnesses were exposed to the defendants
statements, 10/19/pm/42-43, none of the defense media exhibits included any
73

The district courts failure to appreciate Norths requisite focus on the
content of a witnesss testimony was also apparent at the Kastigar hearing. Before
the hearing, the government provided the defense with all the underlying
statements of the Iraqi witnesses, 10/19/pm/76-78, 81, 84-86, and at the hearing, it
attempted to present a brief synopsis of its prospective trial witnesses testimony
to show the independent basis for their knowledge. See 10/19/pm/79-80 (the
purpose is to show this witness * * * will be able to say, for example, that he saw
* * * four vehicles, and three * * * were firing. Or he only saw two vehicles, and
one * * * was firing.); accord 10/16/pm/20-21. The defense objected to getting
into the merits of what the witness said, 10/19/pm/81, and the court sustained the
objection. 10/19/pm/81-82, 84, 87. When the government asked that the court
simply be allowed to look at its chart summarizing the Iraqis testimony, the
defense again objected. 10/19/pm/87-88 (this contains information * * * the
Arabic accounts. See Def.Exs.1-46. Moreover, when Kohl interviewed the Iraqi
witnesses, he was struck by how many did not have access to the internet or know
how to type a website address into a computer. 10/28/pm/81-82.
Ex.23
GJ.Ex.107/1-2.
74

Court has ruled should not be admitted).29
The courts opinion further (and more specifically) reveals its error. In
finding that all the Iraqi witnesses were tainted, the court focused on a few who
were exposed to the defendants statements. Mem.Op. 72-73. These, the court
reasoned, illustrated the taint problem vis-a-vis all the Iraqis, id. but, in fact, the
courts examples better illustrate how its analysis went wrong. Take, for instance,
Hassan Jabir Salman, a victim of the shooting who told reporters from the
hospital, [i]t is not true when they say they were attacked. We did not hear any
gunshots before they started shooting. Mem.Op. 72 (quoting Def.Ex.43).
Salmans statement was tainted, according to the court, because it appears to have
been a direct response to the defendants compelled accounts that they had
encountered incoming fire[.] Id. Even if true, the courts observation misses the
point. Not only is an interview from a hospital bed not the same thing as a
statement to the grand jury,
29
In light of that ruling, the government redacted the substance from its
chart, and presented another piece of its evidence: that in pretrial interviews in
June 2009, nearly all the Iraqi witnesses said they had never seen the defendants
statements. 10/19/pm/72-76, 87-98; Ex.23; see 11/2/am/74-78 (AUSA Malis,
explaining detailed protocol for questioning witnesses about possible exposure to
statements); Ex.45; 10/19/pm/67-71; 10/20/pm/27-28 (FBI Agent Murphy,
explaining efforts in October 2007 to ensure witnesses spoke only about what they
saw with their own eyes [or] * * * heard with their own ears).
75
GJ.Ex.1
The courts treatment of Dr. Haitham Al-Rubaie, whose wife and son were
killed in the Square, was similarly flawed.
C.Murphy.Ex.25. As the court found, his
reference to Paul was surely derived from his exposure to the
Mem.Op. 73 n.55 but, again, that answers the wrong question. The
government did not intend to call Dr. Al-Rubaie to identify Slough as a shooter
(he, of course, could not, as he was not in the Square on the 16th), but to identify
two victims alleged in the indictment. And, in any event, as a non-percipient
witness, Al-Rubaie provided no evidence in the grand jury.30
30
Because the Kastigar hearing aimed not only to determine whether
the indictment was tainted, but to give guidance on prospective trial evidence,
Ex.23/2-3.
76

Finally, the court pointed to Sarham Deab Abdul Moniem Da-Zubaidi, who
was exposed to information from the defendants statements from DSS agents.
Mem.Op. 73 (agents told him the Blackwater guards said he was pushing the
[Kia] towards the convoy). But the courts conclusion that allegations made by
Da-Zubaidi were specifically included in the summary of evidence against Slough
and Ball, id. (citing GJ.Ex.107/1, 7), again misconstrues the inquiry for the
content of Da-Zubaidis allegations
had nothing to do with the pushing of any car.31
Throughout its opinion, the district court emphasized that news reports
conveying the substance of the defendants compelled statements that they were
responding to hostile fire were widely reported, and thus spreading Kastigar
taint. See Mem.Op. 61-62, 63 n.46, 72.
GJ.Ex.107; see GJ.Ex.1
31
See Ex.302. The court found that Da-Zubaidis

exposure through those interviews is hardly surprising, given Agent Carpenters
acknowledgment that some questions may have been formed as a result of
information provided by [Raven] 23. Mem.Op. 73 n.56 (quoting
Carpenter.Ex.8). The court failed, however, to quote the remainder of Carpenters
sentence
Carpenter.Ex.8.
10/19/am/76-77; 10/19/pm/8-9.
77
10/19/pm/8-9.32 Under the courts
reasoning, any statement regarding, or any question about, hostile or incoming fire
would be consequently tainted. Both the record and logic, however, belie that sort
of thinking.
See Mem.Op. 6-7. E.g.,
Lopez.Ex.2
Reta.Ex.3
See Ex.252
id.
id. id.
10/15/pm/37-39
The FBI received the log in October 2007,
32
See GJ.Tr.12/2/08/am/4
GJ.Tr.11/20/08/pm/29
78

10/21/pm/86-88, 94
See supra, at 48.
The real question, and one that would obviously take center stage at any
trial, is what the claims of incoming fire actually meant: i.e., whether the guards,
in fact, were fired upon (or whether they mistakenly reported on their own fire);
whether any Iraqi shooting was in response to the convoys assault
see GJ.Ex.90/63
or, perhaps most importantly,
whether the guards response was
in proportion to anything that may have been coming their way. See
GJ.Ex.106/43-49, 54.
But the central point remains: the defendants did not own the particular
fact regarding incoming fire and any comment by a witness on, or any question
by an investigator about, incoming fire did not thereby taint the testimony or infect
the witness. See Montoya, 45 F.3d at 1292 (Use immunity does not protect the
substance of compelled testimony, it only protects against the use of compulsory
testimony as a source of evidence.); accord Ponds, 454 F.3d at 328.
Investigators clearly had an independent basis
79

for asking about incoming fire.
And they also had common sense. As Agent Patarini put it, the
Blackwater guards were not going to say, we were angry that day so we just
mowed down these * * * people because we were pissed off at them.
10/22/pm/25. Self-defense, he knew, was obviously the issue. Id.; see
10/27/pm/17 (Ponticiello; same).
The district courts across-the-board disqualification of the Iraqi witnesses,
based on its failure to consider the content as well as the sources of their grand
jury testimony, North I, 910 F.2d at 872, was induced by a mistaken view of the
law, and thus clearly erroneous.
E. The District Court Clearly Erred In Finding That Frosts Journal

Was Tainted.
Frost.Ex.6. The district court found that because Frost was motivated
to write the journal, at least in part, in response to news reports based on the
defendants compelled statements (i.e.,that Raven 23 took action after coming
under small arms fire), the journal was tainted. Mem.Op. 61-64. The court also
80

found the government failed to show the content of the journal was untainted.
Mem.Op. 64-66. Neither the facts, nor this Courts Kastigar teachings, justify
these rulings.
1. Background: The Frost Journal
E.g.,
Frost.Ex.6/5
id.
id.
Frost.Ex.6/6,
Id. at 6-7.
81
Frost.Ex.6/1.
2. Frost Was Motivated To Preserve His Memory About A

Momentous And Tragic Event, And Would Have Written
His Journal Regardless Of Any Exposure To The
Defendants Statements.
10/21/am/90 10/21/pm/40-
41
82
Id.33
In disqualifying Frosts journal, the district court misread this Courts
Kastigar motivation cases. In Hylton, a key government witness pleaded guilty
and cooperated only after being confronted with the defendants immunized
statements. 294 F.3d at 132-134 (witness felt betrayed and that he had no
choice). And in North, National Security Advisor Robert McFarlane requested a
second congressional appearance, revised his previous testimony after studying
Norths immunized testimony, and testified for the government at Norths trial.
North I, 910 F.2d at 864. In direct response to immunized testimony, these
witnesses came forward with incriminating and/or revised evidence against a
criminal defendant in a criminal case.
E.g., GJ.Ex.90/6
33
See 10/21/pm/41-42
83
But even more importantly, Hylton and North did not involve witnesses
with dual motivations (one tainted and one not) for their testimony. The district
court read the cases, however, to hold that even if Frost was principally motivated
to preserve his recollection, if another motivation (to respond to press accounts
based on the defendants statements) played any part in his decision to write, the
journal was tainted. Mem.Op. 61, 63-64 (Kastigar violated whenever exposure
to immunized testimony was a cause of the witnesss decision to testify)
(quoting Hylton, 294 F.3d at 134).
Even accepting the courts characterization of Frosts second, tainted
motivation, it still wrongly disqualified the journal, as the Second Circuit has
reasoned in several dual motivation cases. In Nanni, 59 F.3d at 1432, the court
ruled that if an investigation could have been motivated by both tainted and
independent factors, the government could sustain its Kastigar burden if it
would have taken the same steps entirely apart from the motivating effect of the
immunized testimony. Applying that test to a witness with dual motives, the
court held in United States v. Biaggi, 909 F.2d 662, 689 (2d Cir. 1990), that the
Government should have the opportunity to [show] the witness would have
provided adverse testimony entirely apart from the motivating effect of the
immunized testimony. See also Helmsley, 941 F.2d at 83 (where the grant of
84

immunity * * * compels testimony that angers a [witness] * * * and causes [the
witness] to implicate the immunized witness by testimony that would otherwise
not have been given, a Fifth Amendment violation occurs) (emphasis added). In
Ponds, 454 F.3d at 328, this Court cited Nanni approvingly and Nannis
reasoning fully comports with the central rationale of Kastigar. For if a witness
(like Frost) would have testified anyway that is, entirely separate and apart from
any motivating effect of a defendants immunized testimony then, as Kastigar
would have it, the defendant is in substantially the same position as if [he] had
claimed his privilege. 406 U.S. at 458-59. In fact, he is in exactly the same
position.
10/21/am/77
10/21/pm/41; see also GJ.Ex.90/6
Frost, thus, would have written his journal regardless of what he may (or may not)
85

have read of the others accounts. In failing to ask this question and by instead
focusing on whether Frosts exposure to the press played any part in his decision
to put pen to paper the court misconceived the legal standard and thereby clearly
erred.
3. The Journal Is Not Otherwise Tainted.
The court also clearly misread the October 5 entry,
Frost.Ex.6/8-9.
Id.
The court read this passage as conveying Frosts anger that the defendants
had not given truthful accounts, and that it was thus motivated by his exposure to
their compelled statements. Mem.Op. 64.
86
See 10/21/am/76-77
GJ.Ex.90/109
GJ.Ex.90/103-110;
10/21/pm/49. And again,
Frost would have written this entry regardless of what he may
have read of the defendants statements.
The court was equally wrong in finding the content of Frosts journal was
tainted by his exposure to the statements. Mem.Op. 65-66. In so finding, the
court cited each of the defendants full September 18 statements, which, it
emphasized, dealt with precisely the same events about which [Frost] was
writing. Mem.Op. 66.
10/21/am/82-83;
10/21/pm/28-29 see
Def.Ex.2.
10/21/pm/26
(contrary to the courts finding, Mem.Op. 64)
See Def.Ex.7.
87
Frost.Ex.6/3, 5.
Frosts journal gives no indication that it was based on the content of any
compelled statement or that is anything other than what it purports to be: a
heartfelt, first-hand and contemporaneous narrative of the events as he himself
witnessed them. By overstating and/or simply speculating about the impact of the
defendants statements on the journals content, the court wrongly disqualified it.
F. The District Court Clearly Erred In Finding That All Of

Ridgeways Grand Jury Evidence Was Tainted.
GJ.Tr.11/20/08/am/61-62; 12/2/08/pm/12, 15.
GJ.Ex.1/32-37; GJ.Tr.12/2/08/pm/12-17, 24-25, 31-36, 41, 44. The district court
found that all Ridgeways grand jury evidence was tainted by his exposure to press
coverage of the defendants statements. Mem.Op. 66-71. Again, in making no
88
effort to separate what may have been tainted from what, plainly, was not, the
court clearly erred.
1. Background: Ridgeways Debriefing And Grand Jury

Evidence
In October 2008, Ridgeway and the government entered into plea
discussions. Because the government assumed Ridgeway had been exposed to
some of his fellow guards statements, the initial discussions focused on whether,
how and when he may have seen the statements in order to ensure the
independence of his memory. 11/2/am/13-15, 20-21 (Malis: repeatedly
emphasized that Ridgeway needed to be 100 percent certain that what he was
telling us was independent of whatever he may have read, and that if he wasnt
sure about * * * separating it out in his own mind, not to tell us); id. (we talked
about that at some length). Ridgeway said he saw Slattens statement when they
walked them over to the Embassy, and saw Sloughs on the internet one or two
months later. 11/2/am/14-18. He was not sure whether he might have seen
Heards. Id.
Because Ridgeway was uncertain whether he could separate what Slatten
had told him from what he had read, prosecutors did not ask Ridgeway any
questions about Slattens actions in the Square. 11/2/am/15-16. As for Slough
89

and Heard, Ridgeway said he independently remembered what they did and told
him about the shooting, and that any later exposure to their statements did not
affect his memory. 11/2/am/16-18. In a later session, one of Ridgeways lawyers
represented that, as to Slough, while Ridgeway knew what he saw and heard and
what others had told him, there was a Kastigar risk relating to details regarding
specific targets. 11/2/pm/101-103 (lawyer: Ridgeway able to speak to general
shooting directions).
GJ.Ex.1/32/-27
9, 12.
See 14
11
4.
90
GJ.Tr.12/2/08/pm/12-16.
Id. at 14-16.
Id. at 17.
GJ.Tr.12/2/08/pm/24-25.
Id. at 34-35; see id.
Id. at 35.
Id. at 31-32.
91

Id. at 32-33; see also id.
Id. at 44.
2. All of Ridgeways Information Was Not Tainted.
The government did not call Ridgeway at the Kastigar hearing. And we
concede, as to Slough
that the district court did
not clearly err in finding the government did not meet its Kastigar burden with
respect to that aspect of Ridgeways evidence.
Again, however, the court wrongly disqualified all of Ridgeways evidence
without giving it a more careful look.
Compare GJ.Ex.94/22
92

with GJ.Ex.92/43-44, 50 and
Frost.Ex.6/3 (journal)
See Montoya, 45 F.3d at 1292 (immunity does not protect substance of
compelled testimony, only its use as a source of evidence).
and his proffer was
derived not from the defendants statements, but from his own admissions of guilt.
See 9/18 statement.
93

As North teaches, one rotten apple does not spoil the whole barrel. And if
the government fails to carry its Kastigar burden as to some item or part of a
witnesss testimony, that does not mean it has failed across-the-board. Separating
the tainted from the untainted may be laborious. See North I, 910 F.2d at 861. But
it is what North requires, and what the court failed to do.
G. The Tainted Testimony Presented To The Grand Jury Was

Harmless Beyond A Reasonable Doubt.
Given its view that the testimony of key grand jury witnesses (Murphy,
Frost and his journal, the Iraqis, Ridgeway) was entirely tainted, the district court,
not surprisingly, devoted scant attention to the question of harmlessness.
Mem.Op. 88-89. Given the clear errors in its findings of taint, however,
harmlessness now takes on central importance and the courts determination
needs to be reassessed.34
With the advice and guidance of two taint attorneys, the government
endeavored to present the second grand jury with taint-free testimony. As we
acknowledge, the government was not wholly successful, but as we argue, the
tainted testimony was isolated and narrow:
34
In finding a lack of harmlessness, the court also cited what it believed
were the governments impermissible non-evidentiary uses of the compelled
statements. Mem.Op. 88-89. We discuss non-evidentiary use infra, at 101-123.
94
A constitutional error is harmless when it appears beyond a reasonable
doubt that the error complained of did not contribute to the [outcome] obtained.
Neder v. United States, 527 U.S. 1, 15 (1999) (quoting Chapman, 386 U.S. at 24).
In determining whether an error contributed to an outcome (here, the grand jurys
decision to indict), the record must be viewed as a whole, and the tainted evidence
weighed in light of the untainted. See, e.g., Fulminante, 499 U.S. at 310 (When
reviewing the erroneous admission of an involuntary confession, the appellate
court * * * reviews the remainder of the evidence against the defendant to
determine whether the admission of the confession was harmless beyond a
reasonable doubt); id. at 307-08 (unconstitutionally admitted evidence to be
quantitatively assessed in the context of other evidence); Harrington v.
California, 395 U.S. 250, 254-55 (1969) (evidence apart from that erroneously
admitted was so overwhelming that constitutional error was harmless beyond a
reasonable doubt); United States v. Hasting, 461 U.S. 499, 509 n.7 (1983)
95

(harmless-error inquiry mandates consideration of the entire record).35 As this
Court has elsewhere put it, the core of the [constitutional harmlessness] inquiry is
the strength of the governments residual case. United States v. Stock, 948 F.2d
1299, 1302 (D.C. Cir. 1991).
Here, the grand jury was charged with deciding whether there was probable
cause to believe the defendants committed voluntary manslaughter that is, the
unlawful killing of a human being without malice * * * [u]pon a sudden quarrel
or heat of passion, 18 U.S.C. 1112(a), and attempted manslaughter, 18 U.S.C.
1113, as well as aiding and abetting liability. And while the law
does not
punish an honest and reasonable act of self-defense, if a shooter does not honestly
believe he is in danger of serious bodily injury, or if his honest belief is
unreasonable, the law holds him accountable. See United States v. Alexander, 471
35
See also Ponds, 454 F.3d at 329 (use of Kastigar evidence harmless if
in light of evidence from independent sources, [it] was so unimportant and
insignificant that it had little, if any, likelihood of having changed the result of
the proceeding) (citation, quotation omitted); United States v. Pelletier, 898 F.2d
297, 303 (2d Cir. 1990) (in deciding whether to dismiss indictment, court must
assess extent of use of the immunized testimony in light of other evidence
before the grand jury); Rogers, 722 F.2d at 560 (Kastigar error in grand jury
harmless in light of the more than adequate untainted evidence to support the
indictment); accord United States v. Serrano, 870 F.2d 1, 16 (1st Cir. 1989)
(noting substantial untainted evidence presented to the grand jury); United
States v. Gallo, 859 F.2d 1078, 1083-84 (2d Cir. 1988).
96

F.2d 923, 942 (D.C. Cir. 1973); United States v. Peterson, 483 F.2d 1222, 1229-30
(D.C. Cir. 1973) (the law of self-defense is a law of necessity * * * and never
must the necessity be greater than when the force employed defensively is
deadly[.] * * * The defender must have believed that he was in imminent peril of
death or serious bodily harm, and that his response was necessary to save himself
therefrom. These beliefs must not only have been honestly entertained, but also
objectively reasonable in light of the surrounding circumstances) (citation,
quotation omitted).36
Here, the governments residual case on behalf of its manslaughter
charges was overwhelming. The physical evidence alone
told a powerful story. Colonels Boslego and
Tarsa (whose testimony the court did not find was tainted) further filled in the
picture.
36
See also United States v. Harris, 420 F.3d 467, 476 (5th Cir. 2005)
([t]he term heat of passion means a passion of fear or rage in which the
defendant loses his normal self-control as a result of circumstances that would
provoke such a passion in an ordinary person, but which did not justify the use of
deadly force).
97

E.g., GJ.Ex.106/70
id. at 53
GJ.Ex.108/24 id. at 42
Raven 23 guard Mealy, who the court also did not find was tainted,
provided some of the most central testimony in the grand jury.37
e.g., GJ.Ex.92/89-90
As we argue, the great majority of Murphys and Frosts
testimony e.g., GJ.Ex.94/43-46
should also appropriately weigh on the untainted side of the scale, as
should Ridgeways proffer and evidence against So it is,
too, with the Iraqi witnesses.
37
The court found the extent of Mealys exposure to the defendants
statements was less clear than Frosts and Murphys. Mem.Op. 52 n.38.
10/19/am/26-28; see 10/19/am/47-48,
53-54
Mealy.Ex.1/1-5.
98
And because the testimony of many other Iraqis (identifying the shooters
or describing what happened to them or others in the Square) was wholly
unrelated to the leaked accounts of the defendants statements, their evidence, too,
rightfully supports the indictment.
The grand jury is not the final arbiter of the facts. It sits only to find
probable cause to believe the defendant committed a crime and then, only by
majority vote. See Fed.R.Crim.P. 6(a), (f). It may rely on an agents summary of
evidence, e.g., Daniels, 281 F.3d at 176, and hearsay, Costello v. United States,
350 U.S. 359, 363 (1956); see also Fed.R.Evid. 1101(d)(2) (rules of evidence do
not apply in grand jury). And it need not hear any exculpatory evidence on the
targets behalf. See United States v. Williams, 504 U.S. 36, 51-55 (1992) (It is
axiomatic that the grand jury sits not to determine guilt or innocence, but to assess
whether there is adequate basis for bringing a criminal charge); id. (to make the
assessment it has always been thought sufficient to hear only the prosecutors
side); id. (requiring the prosecutor to present exculpatory as well as inculpatory
99
evidence would * * * transform[] [the grand jury] from an accusatory to an
adjudicatory body).
Here, the tainted testimony in the grand jury paled in comparison to what,
rightly viewed, was untainted. And given the strength of the untainted evidence,
this Court should conclude as to Slough, Liberty, Heard, and Ball that any
Kastigar error was harmless beyond a reasonable doubt.38
38
Both at the Kastigar hearing and in its opinion, the court sharply
criticized the government for not presenting exculpatory evidence to the grand
jury. Mem.Op. 22-24; e.g., 11/2/pm/78. Although the issue did not overtly figure
into the courts taint analysis, it plainly affected the courts thinking. Indeed, in a
hearing that was very much on the clock, e.g., 10/22/pm/63 (you have eight
minutes); 10/23/am/83 (wind it up); 10/23/pm/96 (only 16 seconds left), the
court devoted the better part of a day to determining whether, in choosing what
testimony to present to the second grand jury, the government excluded
exculpatory evidence. See 11/3/am/5-20, 31-75; 11/3/pm/4-38; 11/3/am/16 ([I]ts
important. * * * [I]ts implications * * * affect * * * some of the other judgments
Im going to make * * * .); id. (I find that this exculpatory line of questioning
* * * is very relevant for a host of reasons, many of which touch upon the
Kastigar/Garrity issue.).
To the extent the court found the issue very relevant, it did so wrongly.
As Williams makes clear, the government is not legally obliged to present any
exculpatory evidence to the grand jury. Notwithstanding the Williams rule,
however, it is DOJ policy that when a prosecutor conducting a grand jury inquiry
is personally aware of substantial evidence that directly negates the guilt of a
subject of the investigation, the prosecutor must present or otherwise disclose such
evidence to the grand jury before seeking an indictment[.] U.S. Attorneys
Manual 9-11.233. While these guidelines do not provide a basis for dismissing
an indictment, e.g., Montoya, 45 F.3d at 1295, the prosecutors here did take their
obligation seriously, see 11/3/am/31-34 (Malis) and, as described, supra, at 47-
48, presented substantial exculpatory evidence to the grand jury. The courts
100
II. THE DISTRICT COURT ERRED IN FINDING THE GOVERNMENT

MADE IMPERMISSIBLE AND SIGNIFICANT NON-EVIDENTIARY
USE OF THE DEFENDANTS COMPELLED STATEMENTS.
While Kastigar prohibits direct and derivative evidentiary use of immunized
testimony, it does not address non-evidentiary use. See North I, 910 F.2d at 858.
This Court, too, has twice declined to reach the issue. Id. at 860; Kilroy, 27 F.3d
at 687. The district court held that Kastigar prohibits significant non-evidentiary
use of compelled testimony, and found the government made such use here.
Mem.Op. 29-30, 75-85. The court found that the government impermissibly used
Heards and Balls Garrity statements in deciding to charge them, Mem.Op. 75-
78, and that all the defendants statements guided the governments investigation
and prosecution. Mem.Op. 78-85. The court erred under both the law and facts.
A. Standards of Review
Whether, and to what extent, the Fifth Amendment prohibits non-
evidentiary use of an immunized statement is a legal question, reviewed de novo.
See North I, 910 F.2d at 856-60. Whether the government made non-evidentiary
use of such statements is a factual determination, reviewed for clear error. See id.
analysis of the issue was wrong as a matter of both law and fact and the error
appears, again, to have infected the courts overall view of the case.
101
at 860. This Court evaluates harmlessness de novo. See United States v. Oruche,
484 F.3d 590, 600-01 (D.C. Cir. 2007).
B. Where The Government Has Sufficient, Independent Evidence To

Indict, The Fifth Amendment Does Not Require It To Prove That
A Prosecutors Charging Recommendation Was Unaffected By
His Exposure To Immunized Testimony.
As this Court has noted, a prosecutors consideration of an immunized
statement in deciding to initiate prosecution could constitute a non-evidentiary
use of that statement. North I, 910 F.2d at 857. Ruling that such non-evidentiary
use is impermissible, the district court dismissed the indictment against Heard and
Ball upon finding that the governments decision to charge them was prompted by
its exposure to their Garrity statements. Mem.Op. 75-78. This Court need not
decide whether all manner of non-evidentiary use is permissible under Kastigar
but it should decide that where, as here, an indictment is supported by sufficient
evidence derived from wholly independent sources, the government need not show
that a prosecutors charging recommendation was unaffected by his exposure to an
immunized statement.
This position follows from familiar Fifth Amendment principles. The
Amendment provides that [n]o person * * * shall be compelled in any criminal
case to be a witness against himself. U.S. Const. amend. V. This core
102
constitutional right is safeguarded by an evidentiary privilege that allows a
witness to insist that his testimony be immunized from use and derivative use in a
future criminal proceeding before it is compelled. Chavez v. Martinez, 538 U.S.
760, 770-71 (2003) (plurality) (citing Kastigar, 406 U.S. at 453); see id. at 767
(Martinez was never made to be a witness against himself in violation of the
Fifth Amendments Self-Incrimination Clause because his statements were never
admitted as testimony against him in a criminal case); see also id. at 777 (the
text of the Fifth Amendment * * * focuses on courtroom use of a compelled, self-
incriminating statement and affords evidentiary protection against such use)
(Souter, J., concurring in the judgment, with Breyer, J.).
As Kastigar makes clear, its prohibition on use and derivative use immunity
does not encompass the considerably broader protection of transactional
immunity, which accords full immunity from prosecution for the offense to which
the compelled testimony relates. 406 U.S. at 453. Because the granting of use
immunity presupposes the possibility of a later prosecution, see id. at 462 (use-
immunity is not an amnesty grant), the bringing of an indictment whose
sufficiency rests on evidence derived from a legitimate source wholly
independent of the compelled testimony, id. at 460, comports with the Fifth
Amendment. In such a case, the Fifth Amendment should not require an inquiry
103
into the prosecutors thought processes in deciding whether to recommend charges
for to make him prove that his thinking was unaffected by exposure to an
immunized statement would blur the important line between use and transactional
immunity.
United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985), is particularly
instructive. There, after an indictment was dismissed against a defendant who
gave immunized testimony to the grand jury, the prosecutor who elicited the
testimony participated in the decision to reindict. Id. at 1529-31. The court found
no Kastigar violation:
Kastigar [does not] require a court to inquire into a prosecutors motives in

seeking indictment. So long as all the evidence presented to the grand jury
is derived from legitimate sources independent of the defendants
immunized testimony, and the grand jury finds that independent evidence
sufficient to warrant the return of an indictment, the defendants privilege
against self-incrimination has not been violated. At a minimum, the
existence of independent evidence sufficient to establish probable cause to
indict must be deemed to raise a presumption that the decision to indict was
not tainted. Any other result would be the equivalent of transactional
immunity, for it is almost impossible to conceive of a method whereby the
government could demonstrate by a preponderance of the evidence that the
immunized testimony did not indirectly enter into a subsequent decision to
prosecute.
Id. at 1530-31; id. (Fifth Amendment is not concerned with the exercise of
prosecutorial discretion).
104
Other courts agree. In United States v. Mariani, 851 F.2d 595 (2d Cir.
1988), the Second Circuit found that a prosecution should not be foreclosed
because immunized testimony tangentially influenced the prosecutors thought
processes in preparing the indictment and preparing for trial. Id. at 600. In view
of the governments convincing proof that the evidence upon which it based its
prosecution * * * came from legitimate independent sources, we cannot see how
the * * * prosecutors knowledge of Marianis immunized testimony could be
considered impermissible use of that testimony. Id. at 601; accord United States
v. Rivieccio, 919 F.2d 812, 815 (2d Cir. 1990).
In Montoya, 45 F.3d at 1296, an AUSA included excerpts of immunized
testimony in his application to the Attorney General in seeking permission to
prosecute. The Ninth Circuit refused to dismiss the indictment on the basis of that
use, finding it too remote from the criminal proceeding, and noting that the
AUSAs request also detail[ed] the independent sources of evidence necessary to
prosecute. Id. at 1297.
In Serrano, 870 F.2d at 17-18, the First Circuit declined to consider an
unpreserved claim of non-evidentiary use in the decision to indict, partly because
the claim was not compelling enough to warrant consideration for the first time on
appeal. See id. at 17 (dismissing an indictment on that basis would in effect grant
105
a defendant transactional immunity once it is shown that government attorneys or
investigators * * * were exposed to the immunized testimony); see also United
States v. Velasco, 953 F.2d 1467, 1474 (7th Cir. 1992) (the mere tangential
influence that privileged information may have on the prosecutors thought
process in preparing for trial is not an impermissible use of that information).39
As these decisions recognize, Kastigar does not require prosecutors to
prove that, in seeking an indictment, their thinking was unaffected by immunized
testimony. The purpose of use immunity is not to immunize a witness from
prosecution, but to leave both him and the government in substantially the same
position they would have been in had the witness claimed his privilege against
self-incrimination. Kastigar, 406 U.S. at 458-59. The return of an indictment
fully supported by wholly independent evidence does just that. In fact, to dismiss
such an indictment based on an examination of the prosecutors motives in
recommending it would put the defendant in a better position than he would have
39
As this Court has noted, the Eighth and Third Circuits have taken a
very restrictive view of non-evidentiary use of immunized testimony, see North I,
910 F.2d at 857-860 (discussing United States v. McDaniel, 482 F.2d 305 (8th Cir.
1973), and United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983)), but as the
district court recognized, this Court appears to have rejected a blanket prohibition.
Mem.Op. 29 (citing North I, 910 F.2d at 859-60).
106
been in had he claimed his privilege, in contravention of settled Fifth Amendment
principles.
C. The District Court Clearly Erred In Finding The Governments

Exposure To Heards And Balls Compelled Statements Played A
Central Role In The Decision To Charge Them.
Even if this Court believes Kastigar prohibits a prosecutors non-
evidentiary use of compelled testimony in deciding whether to recommend
charges, the district court clearly erred in concluding that the government made
such prejudicial non-evidentiary use here.
1. The Decision To Recommend Charges Against Heard Was

Based On The Independent Evidence Against Him, Not His
September 16 Statement And The Reference To Heards
Statement In The Prosecution Memo, Later Redacted, Was
Harmless Beyond A Reasonable Doubt.
Kohl added Heard to his target list in March 2008. 10/28/am/39-40; Ex.70.
As he explained, that decision was made after the February 2008 trip to Baghdad
in which Colonel Boslego told Kohl that launching a grenade in a busy square was
virtually per se reckless, and after which Kohl concluded that the shooting into
the Kia was unjustified (despite the benefit of the doubt given by Frost and Mealy
on the matter). 10/28/am/42-46. As Kohl further explained, Frost, Mealy and
Murphy were also speaking sympathetically about Heard and Ball, so although
107

Kohl knew earlier that Heard had shot, he was taking their counsel seriously and
proceeding carefully. 10/28/am/25-26.
The district court rejected those explanations and found the charging
decision was better explained by the timing of the prosecutions exposure to
Heards September 16 statement. Mem.Op. 75-77. The timing, however, actually
belies the courts finding. The government was first exposed to Heards
September 16 statement on January 10, 2008, when Ponticiello interviewed
Carpenter. 10/26/pm/90-93.
Ex.215.#3906; 10/27/pm/43-44. The team, including Kohl, also met
with Lopez, and learned that same information, on January 25. 10/27/am/26-27.
See Ex.70. If, as the district court believed, the
governments decision to target Heard was driven by its exposure to his September
16 statement, the government would have made the decision when, in fact, it was
exposed to the statement. But it did not.
The court further found that references to Heards September 16 statement
in drafts of the prosecution memo also showed the statement played a central role
in the charging decision. Mem.Op. 75-76. In the memo, which covered some 70-
108

80 pages, the government summarized its evidence against each defendant.
10/29/am/166-68, 173-74.
See 10/29/am/167-183; e.g., Kohl.Ex.70. After vetting by the taint
attorneys, this subsection was deleted from the final memo, and in an email to his
superiors, Kohl noted the change and said the prosecution recommendation was
based on the other evidence in the case. 10/29/am/183-84; 11/2/am/63-65;
Ex.69.#4464; Ex.308.#5901-02; see also 10/29/pm/5-7 (Kohl: Heards statement
never came up in any discussions with supervisors).40
Given the strength of its evidence against Heard
see GJ.Ex.107/3-4), it
is clear that this one subsection, deleted before the final prosecutive decision was
40
At the Kastigar hearing, the government attempted to admit the entire
final (redacted) prosecution memo, which detailed the governments other
evidence against Heard (and the others). See 10/29/pm/14-17. The court,
however, sustained the defense objection to the memos admission. Id.
109
made, did not drive any charging decision. Or, by the same token, any role
Heards statements may have played in the minds of prosecutors as reflected in
earlier drafts of the memo was harmless beyond a reasonable doubt. Ponds is
instructive. There, evidence derived from a defendants immunized statements
was included in a search-warrant affidavit that, in turn, led investigators to the
primary evidence used to indict. 454 F.3d at 327-28. In remanding for a Kastigar
harmlessness determination, this Court set the standard for the inquiry and held
the government had to prove beyond a reasonable doubt that its case would have
been vigorously pursued, and the search warrant sought and obtained, had the
government not relied on the Kastigar evidence. Id. at 328-29.
The government can meet that standard here: its case against Heard was
strong, it had already decided to seek charges against all the Nisur Square
shooters, and the subsection relating to Heards September 16 statement was
inconsequential in light of its other evidence. See id. at 328. And, of course, the
references to Heards statement were neither in the final memo submitted to the
official decision-makers nor presented to the grand jury. Thus, this Court need not
even ask, as in Ponds, whether the charges against Heard would have been
110
approved without the Kastigar evidence they were or whether the grand jury
would have indicted without mention of the evidence. It did.41
2. The Decision To Recommend Charges Against Ball

Was Based On The Independent Evidence Against
Him, Not His Garrity Statements.
Kohl added Ball to his target list in April 2008. 10/28/am/40; Ex.70. Kohl
explained that he did so based on several factors: the decision to charge the Kia;
the decision to pursue a mass liability theory (by which all shooters would be held
responsible); and the decision to credit the Iraqi witnesses who saw shooting from
vehicle 1 (which the government attributed to Ball) west of the circle. See supra,
at 39-40.
The court dismissed Kohls explanation, and again found that the timing of
the governments exposure to Balls Garrity statements better explained his
addition as a target. Mem.Op. 77-78. The government was first exposed to Balls
September 16 statement in January and February 2008, and the FBI saw an
unsigned draft of Balls written statement, acquired through the search warrant, in
41
Similarly, even if Kohls overture to Heards counsel regarding plea
negotiations, and his suggestion that Heard might be interested in talking because
of what he had said to Lopez, see 10/29/am/161-165, could be considered an
impermissible non-evidentiary use, Mem.Op. 76, it was plainly harmless
because those discussions went nowhere. Cf. Bank of Nova Scotia v. United
States, 487 U.S. 250, 255 (1988) (a district court exceeds its powers in dismissing
an indictment for prosecutorial misconduct not prejudicial to the defendant).
111

the spring or summer. See 10/15/pm/101-02, 118-19; 10/22/pm/17-19;
10/26/pm/91-93. The court found Balls statements to the DSS played a central
role in the charging decision because Ball was added to Kohls list after the
government saw these statements, and because no new evidence against Ball had
surfaced between the March and April updates. Mem.Op. 77-78.
Again, however, the record refutes that finding, and again, Ponds provides
an apt analogy: The government is free to use a piece of information that appears
in an immunized document if it can accomplish its affirmative duty of proving
the information was derived from a legitimate source wholly independent of the
compelled testimony. 454 F.3d at 328 (quoting Kastigar, 406 U.S. at 460).
GJ.Ex.93/93-95).
Reta.Ex.3.
Patarini.Ex.20. Thus, the courts notion that Balls statements
were the central reason for the charging recommendation because they provided
the only new evidence against him between March and April is simply wrong.
There was nothing new at all in Balls statements. And the governments
112
exposure to them could not have driven any charging decision because the
statements told the government nothing it had not already and independently
known for months.
D. The District Court Clearly Erred In Finding The Government

Otherwise Made Non-Evidentiary Use Of The Defendants
Statements In Securing The Indictment.
The district court also found, as to all defendants, that the government failed
to show it made no significant non-evidentiary use of their post-shooting
statements, and ruled that dismissal of the indictment was separately required for
that reason as well. Mem.Op. 78-85. Two basic judgments informed the courts
thinking. First, the court essentially found bad faith by the government that is,
that the trial team aggressively sought and went to great lengths to obtain
information gleaned from the defendants compelled statements in direct
contravention of taint attorney Hulsers directives. Mem.Op. 79-82; id. at 83
(Kohl and the rest of the trial team purposefully flouted the advice of the taint
team); Mem.Op. 2 (the trial team repeatedly disregarded the warnings of
experienced, senior prosecutors); Mem.Op. 17 (same). Most of the courts
discussion, in fact, is devoted to this point as it reviewed at length the
governments efforts to obtain the statements, and harshly rejected Kohls
explanations for his actions. Mem.Op. 78-84.
113
Second, the court found that, given their early, ongoing and intentional
immersion in the statements, which provided a wealth of information and
clear[ly] * * * [had] value to the prosecution, the prosecutors denials of having
made significant non-evidentiary use of them were not credible. Mem.Op. 83-85
(It simply defies common sense that the prosecution would go to such incredible
lengths to obtain the defendants compelled statements, flouting the advice of the
taint team * * * and then make no use whatsoever of the fruits of their efforts.);
accord Mem.Op. 85 n.64.
Importantly, although much of the courts opinion (here and elsewhere, see
Mem.Op. 13-20), is devoted to its view of the governments reckless pursuit of
the September 16 statements, it did not find these efforts led to the presentation of
any evidence against any defendant in the grand jury. See Mem.Op. 51-75. The
governments pursuit of the statements, rather, was relevant only to the courts
analysis regarding non-evidentiary use. Mem.Op. 75-85. And here, the courts
essential reasoning that the government must have made significant non-
evidentiary use of the statements because it aggressively went after them is
supported by neither the record, the law, nor logic.
As we acknowledged at the outset, the government made mistakes during
this investigation, and it obviously regrets the missteps that have imperiled this
114
most important prosecution. And the government does not dispute that it actively
sought the defendants September 16 statements. We do, however, take issue with
the courts characterization of the trial teams conduct on that matter. As we have
endeavored to explain, Kohl in good faith believed, based on what he knew of the
law and the facts, that the September 16 statements were not compelled for
Garrity purposes. Indeed, Hulser agreed, despite having himself taken a more
conservative approach, that Kohls position was reasonable. 10/23/am/8. And
although the court mocks the governments description of events as a
miscommunication, Mem.Op. 82, that is what the record fairly shows
especially given Kohls emails indicating that he, in fact, believed Hulser had
cleared his use of the September 16 statements. E.g., Ex.68.#2719-20. Hulser,
notably, read the emails that way, too. See 10/23/am/68 (it seems to me, looking
at the emails, that [the prosecution team] didnt actually get the exact advice that I
had given).42
Despite the obvious importance of our disagreement with the court about
the governments conduct, it is, in the end, not the central point and the courts
42
Although the district court clearly credited Hulsers testimony, e.g.,
10/23/pm/13 ([t]his is an honest witness), it failed to mention Hulsers own
sense that the trial team had not gotten his advice, and his view that Kohls
substantive position vis-a-vis the September 16 statements was reasonable.
115
near singular focus on the matter misapprehends the Kastigar analysis. As this
Court has made clear, the Kastigar inquiry turns not on whether a prosecutor in
good faith knew or believed that testimony was immunized, but on whether the
testimony was, in fact, used against the defendant. North I, 910 F.2d at 859, 865;
see also Montoya, 45 F.3d at 1292-93 ([t]he question is not whether the
prosecutor was aware of the contents of the immunized testimony, but whether he
used the testimony in any way to build a case against the defendant); accord
United States v. McGuire, 45 F.3d 1177, 1183 (8th Cir. 1995); Velasco, 953 F.2d at
1474; United States v. Caporale, 806 F.2d 1487, 1518 (11th Cir. 1986); United
States v. Crowson, 828 F.2d 1427, 1430 (9th Cir. 1987); United States v. Hsia, 131
F.Supp.2d 195, 201 (D.D.C. 2001) (prosecutors good or bad faith immaterial to
Kastigar inquiry).
And while the governments mere assertion that it did not use immunized
testimony is generally insufficient to establish non-use, see United States v.
Harris, 973 F.2d 333, 336 (4th Cir. 1992), mere speculation does not defeat the
governments burden either. See Mariani, 851 F.2d at 601 (reversing conjectural
and insubstantial findings of non-evidentiary use); Serrano, 870 F.2d at 18
(rejecting notion that mere possibility of nonevidentiary use warrants
indictments dismissal); Byrd, 765 F.2d at 1529 (government need not negate all
116
abstract possibility of taint); Kilroy, 27 F.3d at 687-88; cf. In re Stover, 40 F.3d
1096, 1103 (10th Cir. 1994) ([i]t is axiomatic that the Fifth Amendment protects
against real dangers, not remote and speculative possibilities) (quoting Zicarelli
v. New Jersey Investigation Commn, 406 U.S. 472, 478 (1972)).
Any determination regarding use requires a more considered inquiry. And
here, three things are relevant: the substance of the defendants September 16
statements; the timing of the prosecutors first exposure to them (in January and
February 2008); and what effect, if any, that exposure had on the presentation to
the second grand jury. As noted, the prosecutors worked with the taint attorneys
to present a bare bones, four-day case to the second grand jury. And they drew
on the previous testimony of five key witnesses Raven 23 guards Murphy,
Mealy and Frost, and Colonels Boslego and Tarsa as well as the Iraqis who
helped identify the shooters and/or gave their on-the-scene accounts of what
happened in the Square, and Ridgeway, who pleaded guilty shortly before the
grand jury convened. The key witnesses were identified by the FBI in fall 2007,
and the testimony of Murphy, Mealy and Frost, moreover, was memorialized in
November and December 2007 well before the prosecutors were exposed to the
defendants statements. Thus, the prosecutors knowledge of the defendants
statements did not lead them to the grand jury witnesses, nor did it steer them to
117

any of the considerable physical evidence presented to the grand jury, which the
FBI had largely gathered in 2007. See 10/22/pm/55-63, 67-68 (Patarini:
developed no witnesses, no physical evidence as a result of later exposure to
defendants statements); 10/20/pm/107-09 (Agent Murphy; same); 10/28/pm/29-
31, 49-51 (Kohl; same); 11/2/am/80-83 (Malis; same); 10/27/pm/101 (Ponticiello;
same).43 This is simply not a case where a prosecutors knowledge of immunized
testimony help[ed] explicate evidence theretofore unintelligible, expos[ed] as
significant facts once thought irrelevant, indicate[d] which witnesses to call, and
in what order, or help[ed] in developing opening and closing arguments. North
43
While barely mentioning the FBIs physical evidence, see Mem.Op.
12, the court discussed at some length its view that the physical evidence collected
by DSS agents on September 20, and later given to the FBI, was tainted by the
agents exposure to the defendants statements. Mem.Op. 86-88; see Ex.27
Ex.275. Concluding that the evidence may have been highly relevant to the
criminal case, the court found its use constituted yet another Kastigar
violation. Mem.Op. 87-88. This finding, again, is untethered to the record:
GJ.Ex.87A-E, 88C,
88G see GJ.Tr.11/25/08/49-55,
GJ.Ex.88F none of the physical evidence collected by the DSS was presented to
the grand jury.
The district court also reiterated its criticism of the February 2008 search
warrant project and the August 2008 consideration of false statement charges
based on the September 16 statements. Mem.Op. 80-81. Again, however, nothing
came of either: none of the material was presented to the grand jury, and no
obstruction or false statement charges were brought.
118

I, 910 F.2d at 857-58. And again, the government did not need to see anyones
statement to know the guards would claim self-defense. See Daniels, 281 F.3d at
182 (prosecutors exposure to immunized statement inconsequential where
defendant effectively had only one defense, and a competent prosecutor would
need no special insight or information to discern it).
The courts finding that the government must have made significant non-
evidentiary use of the defendants statements was also largely driven by its
assumption that the specific information included in the statements was of
significant value to the case. E.g., Mem.Op. 83 (it is abundantly clear that the
defendants compelled statements did have a value to the prosecution); Mem.Op.
84 (statements provided a wealth of valuable information); Mem.Op. 49. In so
finding, the court
Mem.Op. 83.
The court is half right: the September 16 statements
See Mem.Op. 5-7
The court is
wrong, however, in concluding that any of this was of significant value to the
119

governments case. The most important piece of information imparted by the
statements was independently known by the
government well before prosecutors saw the statements, from the Iraqi witness
interviews in October 2007 and the testimony of Frost, Murphy and Mealy in
November and December. 10/28/am/18-19.
The government also knew in October 2007, again based on its own
investigation and before any exposure to the defendants statements, where the
shots had been fired and thus where the shooters would claim to have seen any
possible threats. As Patarini explained, based on its search of the Square, the
seizure (or photographs) of vehicles, and the interviews of U.S. military and Iraqi
witnesses in 2007, the FBI had a fairly comprehensive picture of the shooting. See
10/21/pm/79-82; 10/22/pm/55-58, 61-63; 10/22/pm/57 (physical evidence told us
which direction * * * the fire came from, and also g[a]ve us a volume of fire);
10/22/pm/58 (knew from Iraqis and U.S. military where vehicles had been in the
Square); see also 10/27/pm/90-91 (Ponticiello: if theyre claiming they were
being shot at, we knew the direction where [the guards] were shooting because
there were obviously bullets in the vehicles that were shot at); id. at 17.
That the government knew, before seeing any statement, who the shooters
were and where the shots had been fired itself rendered the statements of scant
120
non-evidentiary value. See McGuire, 45 F.3d at 1183 (immunized testimony
which merely confirms information previously known to government agents from
independent sources does not preclude prosecution) (citation, quotation omitted);
Mariani, 851 F.2d at 600 (prosecutors prior knowledge of substantially all
information covered in immunized testimony forecloses possibility that he used
it); Crowson, 828 F.2d at 1432 (where government can prove prior, independent
source for its evidence, the non-evidentiary purposes of trial strategy, etc., would
seemingly have been developed anyway).44
But even more importantly, the governments theory of the case simply did
not turn on the type of information the court thought so valuable. As noted, the
government charged the case on a mass liability theory: it was (and is) the
governments view that all the shooters should be held responsible because each
joined in one reckless and unjustified shooting spree, aiding and abetting each
other. That theory does not require proof that any defendant was responsible for
44
See also Ex.64.#4367-69 (Kohl to supervisors: the shooters were
already identified by the time the prosecution team was exposed to [the 9/16]
statements (through, for example, the recovery of Libertys magazine at the scene
* * *, the Iraqi witness identifications of the shooters based on vehicle and/or
turret positions, and the accounts of Blackwater witnesses provided to the FBI
and/or the grand jury prior to the exposure of the prosecution team) ** * the oral
statements were not used to develop any leads, confront any witnesses, or
otherwise develop other evidence * * * [and] the oral statements themselves were
very brief and largely exculpatory).
121
any particular shots at any particular victim. As the Fifth Circuit found in the
analogous case of the Branch Davidian killing of several ATF agents:
In a prosecution for aiding and abetting a crime, the Government need not
identify a specific person or group of individuals as the principal. * * * To
the contrary, the Government need only show that the substantive offense
had been committed by someone and that the defendant aided and abetted
him. * * * The Government never claimed to be able to prove who fired the
specific rounds that killed the four ATF agents. The inability to identify the
actual gunmen, however, does not negate the evidence proving that
someone in the compound killed the agents. * * * We find no difficulty in
holding that actively participating in a gunbattle in which a gunman kills a
federal officer can aid and abet that killing.
United States v. Branch, 91 F.3d 699, 732 (5th Cir. 1996) (citation, quotation
omitted).
Thus, the wealth of information the defendants statements may (or may
not) have provided about specific targets was not only redundant of what the
government already knew, it was essentially irrelevant to its theory of the case.
And where, as here, immunized statements are of little use (indeed, the
government viewed these as incomplete, false and self-serving), it is simply not
reasonable to assume let alone deem it a foregone conclusion, as did the district
court that the government made significant non-evidentiary use of the
statements. See, e.g., Daniels, 281 F.3d at 182 (prosecutors exposure to
immunized testimony did not prejudice defendant, where testimony contained no
122
relevant information not independently available); Mariani, 851 F.2d at 601
(government did not make impermissible non-evidentiary use of defendants
immunized admissions where it had no need for them); Caporale, 806 F.2d at
1518-19 (no Kastigar violation where defendants immunized testimony was
self-serving and of no real value to the investigation); United States v.
Anderson, 450 A.2d 446, 451 (D.C. 1982) (where defendants immunized
statement was both suspect and exculpatory, an inquiry into the subjective
thinking of the prosecuting authorities would be especially meaningless); United
States v. Romano, 583 F.2d 1, 8 (1st Cir. 1978) (there was nothing to suggest that
the Government needed [the defendants] testimony to help make out its case).
To be sure, as Hulser (and others) testified, prosecutors in a non-Kastigar
case like this would surely want any immediate post-shooting statements,
10/23/am/31-32 and the prosecutors, believing themselves entitled to them,
naturally sought the statements out here. But that does not mean the statements
were used by or were of any real use to the government in making its case or
presenting it to the grand jury.
123
CONCLUSION
The district court, plainly, was unhappy with the government. In its
displeasure (whether fair or not), the court lost sight of the central Kastigar
inquiry which asks whether, how, and to what extent a defendants immunized
testimony was actually used against him and unjustifiably drew the curtain on a
meritorious prosecution. As we explain, the indictment was not fatally tainted by
either evidentiary or non-evidentiary Kastigar error. It should be reinstated.
Respectfully submitted,
LANNY A. BREUER
Assistant Attorney General
GREG D. ANDRES
Acting Deputy Assistant Attorney General
________/s/___________________
JOSEPH N. KASTER DEMETRA LAMBROS
MICHAEL DITTOE Attorney
Trial Attorneys
National Security Division U.S. Department of Justice
Criminal Division, Appellate Section
950 Pennsylvania Ave., NW #1264
Washington, D.C. 20530
(202) 307-5964
Demetra.Lambros@usdoj.gov
June 16, 2010
124
CERTIFICATE OF COMPLIANCE
I hereby certify that, pursuant to this Courts Order of May 21, 2010, the
Preliminary Brief for the United States contains 30,000 words, excluding the parts
exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and D.C. Circuit Rule 32(a)(2). The
brief has been prepared in a proportionally spaced typeface (Times New Roman,
14-point).
___________/s/______________
DEMETRA LAMBROS
125
CERTIFICATE OF SERVICE
I certify that, on June 16, 2010, I served the revised Public Copy of the
Governments Preliminary Brief on counsel for all parties via the Courts ECF
system. I also separately sent hard copies to all counsel via first class mail.
_________/s/________________
DEMETRA LAMBROS
Attorney, U.S. Department of Justice
Criminal Appellate Section
950 Pennsylvania Ave., NW
Room 1264
Washington, D.C. 20530
(202) 307-5964
Demetra.Lambros@usdoj.gov
126
ADDENDUM
ADDENDUM: STATUTES
18 U.S.C. 1112. Manslaughter
(a) Manslaughter is the unlawful killing of a human being without malice.

It is of two kinds:
VoluntaryUpon a sudden quarrel or heat of passion.
InvoluntaryIn the commission of an unlawful act not amounting to a
felony, or in the commission in an unlawful manner, or without due caution and
circumspection, of a lawful act which might produce death.
(b) Within the special maritime and territorial jurisdiction of the United
States,
Whoever is guilty of voluntary manslaughter, shall be fined under this title
or imprisoned not more than 15 years, or both;
Whoever is guilty of involuntary manslaughter, shall be fined under this
title or imprisoned not more than 8 years, or both.
18 U.S.C. 1113. Attempt to commit murder or manslaughter
Except as provided in section 113 of this title, whoever, within the special
maritime and territorial jurisdiction of the United States, attempts to commit
murder or manslaughter, shall, for an attempt to commit murder be imprisoned not
more than twenty years or fined under this title, or both, and for an attempt to
commit manslaughter be imprisoned not more than seven years or fined under this
title, or both.
18 U.S.C. 924(c). Penalties
(1)(A) Except to the extent that a greater minimum sentence is otherwise

provided by this subsection or by any other provision of law, any person who,
during and in relation to any crime of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or dangerous weapon or device)
for which the person may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such crime of violence or drug
trafficking crime
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of
not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of
not less than 10 years.
(B) If the firearm possessed by a person convicted of a violation of this
subsection
(i) is a short-barreled rifle, short-barreled shot-gun, or semiautomatic assault
weapon, the person shall be sentenced to a term of imprisonment of not less than
10 years; or
(ii) is a machinegun or a destructive device, or is equipped with a firearm
silencer or firearm muffler, the person shall be sentenced to a term of
imprisonment of not less than 30 years.
(c) In the case of a second or subsequent conviction under this subsection,
the person shall
(i) be sentenced to a term of imprisonment of not less than 25 years; and
(ii) if the firearm involved is a machinegun or a destructive device, or is
equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment
for life.
(D) Notwithstanding any other provision of law
(i) a court shall not place on probation any person convicted of a violation
of this subsection; and
(ii) no term of imprisonment imposed on a person under this subsection
shall run concurrently with any other term of imprisonment imposed on the
person, including any term of imprisonment imposed for the crime of violence or
drug trafficking crime during which the firearm was used, carried, or possessed.
***
(3) For purposes of this subsection the term crime of violence means an
offense that is a felony and
(A) has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing the
offense.
(4) For purposes of this subsection, the term brandish means, with respect
to a firearm, to display all or part of the firearm, or otherwise make the presence of
the firearm known to another person, in order to intimidate that person, regardless
of whether the firearm is directly visible to that person.
(5) Except to the extent that a greater minimum sentence is otherwise
provided under this subsection, or by any other provision of law, any person who,
during and in relation to any crime of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime that provides for an enhanced

punishment if committed by the use of a deadly or dangerous weapon or device)
for which the person may be prosecuted in a court of the United States, uses or
carries armor piercing ammunition, or who, in furtherance of any such crime
possesses armor piercing ammunition, shall, in addition to the punishment
provided for such crime of violence or drug trafficking crime or conviction under
this section
(A) be sentenced to a term of imprisonment of not less than 15 years; and
(B) if death results from the use of such ammunition
(i) if the killing is murder (as defined in section 1111), be punished by death
or sentenced to a term of imprisonment for any term of years or for life; and
(ii) if the killing is manslaughter (as defined in section 1112), be punished
as provided in section 1112.
18 U.S.C. 2. Principals
(a) Whoever commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is punishable as a
principal.
(b) Whoever willfully causes an act to be done which if directly performed
by him or another would be an offense against the United States, is punishable as a
principal.
18 U.S.C. 3261(a)(1). Criminal offenses committed by certain members of

the Armed Forces and by persons employed by or accompanying the Armed
Forces outside the United States
(a) Whoever engages in conduct outside the United States that would
constitute an offense punishable by imprisonment for more than 1 year if the
conduct had been engaged in within the special maritime and territorial
jurisdiction of the United States
(1) while employed by or accompanying the Armed Forces outside the
United States * * *
shall be punished as provided for that offense.

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Case: 10-3006 Document: 1250238 Filed: 06/16/2010 Page: 1

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

PRELIMINARY BRIEF FOR THE UNITED STATES

JOSEPH N. KASTER DEMETRA LAMBROS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. PARTIES AND AMICI

parties are before this Court. There are no intervenors or amici.

B. RULINGS UNDER REVIEW

(D.D.C. 2009). The memorandum opinion (Mem.Op.) appears at JA__.

The following rulings are under review:

1. The district courts findings that the government made evidentiary

use of the defendants immunized statements in securing the indictment, in

2. The district courts ruling that a prosecutors consideration of a

defendants immunized statement in deciding whether to recommend charges

constitutes an impermissible non-evidentiary use of the statement under Kastigar,

of the defendants immunized statements in securing the indictment. Mem.Op. 75-

beyond a reasonable doubt. Mem.Op. 88-89 (JA__).

Slattens and Balls motions to dismiss with prejudice based on prosecutorial

reported at 679 F.Supp.2d 55 (D.D.C. 2010).

Counsel is aware of no other related cases.

Material Under Seal Deleted

STATUTES AND REGULATIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Blackwater, The Raven 23 Convoy, Its Rules Of Engagement,

C. U.S. Colonels Boslego And Tarsa Go To The Scene, And

D. Back At Blackwater Headquarters, Several Raven 23 Guards Are

E. The Raven 23 Team Orally Reports To The State Department On

F. The FBI Goes To Baghdad Under Instructions To Investigate

G. A Reasonable Difference Of Opinion And A Breakdown Of The

H. The Prosecutors Travel To Baghdad, Decide To Charge A Mass

Material Under Seal Deleted

I. Realizing The Testimony Of Some Grand Jury Witnesses May

J. The District Courts Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

THE INDICTMENT SHOULD BE REINSTATED

I. THE DISTRICT COURT CLEARLY ERRED IN FINDING

B. Kastigar and North: The Applicable Legal Principles. . . . . . 58

C. The District Court Clearly Erred In Finding That Murphy

1. Background: The Tainted Testimony. . . . . . . . . . . . . . 61

2. Frosts And Murphys Isolated And Admittedly

D. The District Court Clearly Erred In Finding That The

1. Background: A Sense Of The Publicity.. . . . . . . . . . . . 69

2. The District Court Failed, As North Requires, To

E. The District Court Clearly Erred In Finding That Frosts

1. Background: The Frost Journal. . . . . . . . . . . . . . . . . . . 81

2. Frost Was Motivated To Preserve His Memory

3. The Journal Is Not Otherwise Tainted.. . . . . . . . . . . . . 86

F. The District Court Clearly Erred In Finding That All Of

1. Background: Ridgeways Debriefing And Grand Jury

2. All Of Ridgeways Information Was Not Tainted.. . . . 92

G. The Tainted Testimony Presented To The Grand Jury Was

II. THE DISTRICT COURT ERRED IN FINDING THE

A. Standards of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

B. Where The Government Has Sufficient, Independent

C. The District Court Clearly Erred In Finding The

1. The Decision To Recommend Charges Against

2. The Decision To Recommend Charges Against Ball

D. The District Court Clearly Erred In Finding The Government

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Arizona v. Fulminante, 499 U.S. 279 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . 58, 95

Chapman v. California, 386 U.S. 18 (1967).. . . . . . . . . . . . . . . . . . . . . . . . . . 60, 95

Chavez v. Martinez, 538 U.S. 760 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103